Schryver v. Teller, 9 Paige Ch. 173

Schryver v. Teller

9 Paige Ch. 173 | New York Court of Chancery | 1841

The Chancellor.

Upon the hearing of this motion, I was inclined to the opinion that it was a proper case for contribution ; so that the prior judgments should be paid out of the proceeds of the Redhook property and of the premises sold under the decree in this suit, pro rata. Upon further examination of the question, however, I see nothing „ to take this case out of the general principle, established in the case of Clowes v. Dickinson, (5 John. Ch. Rep. 241,) and other cases in this court, that lands consisting of different parcels, subject to a general incumbrance, are in ¡equity to be charged in the inverse order of the alienation pf the several parcels. The Redhook property was more than sufficient to satisfy the judgments and all other incumbrances thereon prior to the 28th of May, 1840, when the owner of the equity of redemption in both parcels mortgaged the Coxsackie premises to the petitioner. If the judgment creditors, therefore, were seeking to enforce the collection of their judgments against the last mentioned premises, to the prejudice of his mortgage, he would have an equitable right to insist that if he paid the judgments he should have an assignment thereof; to enable him to ¡obtain a repayment out of the surplus proceeds of the Red-hook property, in preference to purchasers or incumbrancers of that property whose claims thereon had accrued subsequent to the date of his mortgage. Had there been a mortgage upon both portions of this property, and a suit had been instituted to foreclose that mortgage, and the incumbrancers upon different portions of the premises as well as those who had general liens on the whole had been made parties to the suit, it would have been a matter of ; course, in the decree of foreclosure and sale, to direct the \ different pieces to be sold separately ; and to marshal the ' proceeds arising from the sale of each parcel in such a manner as to pay general liens upon the whole premises out of that part of the fund which was produced by the sale of the Redhook property; so far as should be necessary to give the petitioner the benefit of the priority of his mortgage upon the Coxsackie, lands, over the sub*177sequent incumbrancers of the lands at Redhook or of the whole premises. And the equities of the parties are the same, although the sale of the different portions of the premises took place under decrees in two different suits instituted to foreclose mortgages against distinct parcels of the property. Here the fund arising from the Redhook lands was sufficient to satisfy the specific liens, on that part of the property of the mortgagor, which were prior in date to the petitioner’s mortgage on the lands at Coxsackie; and all the incumbrances on both parcels which were prior liens. The judgments therefore should be left to be paid out of that fund, under the decree of the vice chancellor, which decree provides for the payment of such judgments if they are not otherwise satisfied; so as to permit the monies arising from, the sale under the decree in this suit, after satisfying the prior specific liens on the Coxsackie property and the costs of the complainants, to be applied to the satisfaction of the petitioner’s mortgage on that property. But if the monies arising from the sale in this suit are more than sufficient to satisfy the petitioner’s mortgage, and the prior specific liens upon the premises, the surplus must be applied to satisfy the judgments which are prior in date to the mortgages of Platt, Staats and Bonesteel, and of Teller and Schryver, upon the Redhook property ; so as to give those mortgagees the same benefit of priority, over the subsequent judgment against the mortgagor and the petitioner W. T. Teller.

Although it is usual to direct the prior incumbrances upon the mortgaged premises to be paid in preference to the complainant’s costs of foreclosure under a prior mortgage, there is nothing inequitable, in the present case, in letting the decree remain as it is as to the costs of foreclosure. From the peculiar situation of the premises and of the prior incumbrances thereon, one of which incumbrances was in favor of these complainants, the premises must necessarily have been subjected to the costs of a foreclosure suit to enable the petitioner to obtain the benefit of his mortgage. And he has lost nothing by the suit being in*178stituted for the foreclosure of the mortgage which was junior to his ; instead of their mortgage of the 27th of May, which was entitled to a priority in payment. The decree must therefore be modified in respect to the order of payment of the incumbrancers merely ; so as to give to the petitioner’s mortgage of the 28th of May an equitable priority over the subsequent incumbrances upon the Redhook property, but leaving it to stand as it now is as to the complainant’s costs. And as the costs of this application to modify the decree have been caused by the neglect of the petitioner to present his equitable claim to priority in respect to his mortgage at an earlier day, as he might have done when the decree of foreclosure was applied for, he mu; 4, pay the complainant’s costs on this application j which costs are allowed at $12, without taxation.