Rugg v. Brainerd

57 Vt. 364 | Vt. | 1885

The opinion of the court was delivered by

Taft, J.

On the 6th day of November, 1873, the Clarks owned the Holyoke farm consisting of one hundred and sixty-three acres, subject to a mortgage in favor of the petitioner of ten thousand five hundred and seventy dollars. The Clarks on that day conveyed seventy-five acres to A. 0. Brainerd, Herbert Brainerd, and Stranahan, the grantees agreeing to pay the Rugg mortgage. The consideration of the purchase was nine thousand three hundred and seventy-five dollars. On the same day the Clarks mortgaged the remaining eighty-eight acres with other lands to Aldis 0. Brainerd to secure him among other things in paying the excess of the mortgage over the purchase price of the seventy-five acre lot, viz.: 1,382 50-100 dollars, and for the payment of all other sums that the Clarks might thereafter owe the said Brainerd. It was understood at the same time that A. O. Brainerd should pay the said sum of 1,382 50-100 dollars, and an unsecured debt due from the Clarks to the petitioner. Aldis O. released his mortgage on twenty-five acres of the land so mortgaged to him, and the Clarks then mortgaged the same to the petitioner to secure such unsecured debt; and the twenty-five acres passed to the petitioner by foreclosure of his mortgage, Aldis O. being a party defendant. The petitioner subsequently sold the twenty-five acre lot. Said Aldis O. in pursuance of the agreement between him and said Claries paid the said sum of 1,382 50-100 dollars, and the Clarks conveyed to him the residue of said farm. Said Aldis 0. gave them a receipt for the deed in full of the notes he held against them, being those upon which he had paid the said sum of 1,382 50-100 dollars, and agreed to give them up provided there had been no liens of a recent date placed on said property. Aldis O. insists that having paid these notes he should share with the petitioner in the security afforded by the original mortgage. Upon the facts reported by the master, it is very clear that the payment of the 1,382 50-100 dollars was a payment made by the Clarks themselves. It is true Aldis O. paid the petitioner the money, but he had agreed with the Clarks that he would pay it; they had secured him. for so doing, and after he had paid it they conveyed to him the 2’emaining portion of the farm, which he received in full of said notes, upon which he had paid the 1,382 50-100 dollars. The notes, having been paid for the Clarks, were thereby extinguished. Aldis O. may have the right to insist that the purchase price of the seventy-five acres, the Fair -Ground lot, as between him and the owners of the lot, shall be charged upon such lot; but the petitioner is not affected by any equities arising between the separate owners of the different portions into which the premises have been divided.

It is unnecessary to say anything upon the questions of evidence presented by the report; for treating the facts found from it as properly in the case, the petitioner is entitled to the relief sought notwithstanding such facts.

Decree affirmed and cause remanded.