13 Vt. 492 | Vt. | 1841
The opinion of the court was delivered by
This is an appeal from a decree of the court of chancery. The object of the orator’s bill is to foreclose a mortgage, executed by the defendant, John
As no fraud is either imputed or proved against the orator, no attempt to prove that the two notes he held against Smith have been in any way paid or satisfied, and as the mortgage deed from Smith to the orator was recorded a few days after
Were it not for the decision made in the case of Edgel v. Stanfords,3 Vt. R. 202, the orator would have had an undoubted remedy at law. Since that decision, we have always required the plaintiff, in an action of ejectment, who introduces a mortgage deed in evidence of his title, also to produce the obligations or notes described in the condition. In some of the other states the practice is different; the plaint-tiff only introduces his mortgage deed, and the defendant must prove the payment or fulfilment of the condition, and this was the opinion of the judge who dissented in that case. In such a case, the defendant could , not have availed himself of a mistake in the description. The learned judge, who gave the opinion of the court in that case, says, that although the plaintiff had no remedy at law, in consequence of the misdescription of the note in the condition, the proper remedy was in chancery, “ in which the court could compel ‘ the mortgagor to give a new mortgage, to rectify the mistake, * or set forth the facts in a bill of foreclosure, and these - be- ‘ ing admitted or established, the court could make such a ‘ decree as equity should require.” Tjie defendant, Gris-wold, being a second mortgagee, having, by the record, constructive notice of the mortgage to the orator, is subject to all the equities arising on that mortgage between the orator and Smith.
If the facts were as supposed by the defendant’s counsel, in his argument, that the mortgage was taken in fact to secure the two notes which the orator held, dated in April and