18 Vt. 231 | Vt. | 1846
No question is raised in this case, but that the orator should have his decree'against Brown; but it is claimed, that the orator, notwithstanding his mortgage is prior in time, should be postponed to Austin; and this is the important question in the case.
We learn from the testimony, that Brown was wishing to make some arrangement with Austin, by which Austin should receive the lands, which had been first mortgaged to the orator, and subsequently to Austin, at the appraisal of men, in satisfaction of his debt. On the twentiéth day of December, 1841, the orator sent a written communication to Austin, by the defendant Brown, in which he agreed to discharge all the claims, which he had upon the real estate of Brown, in case Brown should make an arrangement with Austin, so that he (Brown) should desire to have it done, — that is, the orator would quitclaim all right and title to th'e lands, of which he held a mortgage. At the time the orator gave this line to Austin, he agreed with Brown to substitute other security for his debt, viz., a certain seven acre lot of land, not included in the mortgages .to the orator, or Austin, and a claim against a certain meeting house committee, so called. The very next day Brown carried the line to Austin, and Austin, relying upon it, agreed with Brown to have the land appraised and to receive it in payment of his debt; and notice of this arrangement was given to the orator. The appraisers having been agreed upon, the parties caused the land to be appraised, and a conveyance was executed. Austin gave up the mortgage notes, and took a new mortgage on other lands, to secure the excess of the mortgage debt above the value of the land as appraised.
Though it was some little time, before the agreement between Brown and Austin was carried into execution, yet this was nothing to the orator. He had made his own agreement with Brown to discharge his mortgage, and subsequently took the title to the seven acres of land, which, for aught that appears, he still holds; and whether he might have had the claim against the meeting house committee, if he had attended to it in proper season, is not very material. Simonds had notice from Brown, that he and Austin had agreed upon the terms of settlement, and Simonds never gave any notice to Austin, that he even wished to recede from his agreement with Brown to release his mortgage, — even if he had the right to
We think, then, from the facts, as established in this case, that Austin is entitled to have the orator’s mortgage postponed to his title; but, as he has filed no cross bill, no relief can be decreed to him. All that can be done is to dismiss him from the present bill. The decree of the chancellor should be affirmed against Brown, without any additional costs in this court, allowing him such farther time to redeem as the chancellor shall direct; and the chancellor’s decree, dismissing the executor of Apollos Austin with costs, must be affirmed with additional costs in this court.
The case is remanded to the court of chancery, to be proceeded with accordingly.