8 Paige Ch. 182 | New York Court of Chancery | 1840
The following opinion was delivered by the vice chancellor, upon making the decree appealed frem:
But such was not the mode in which the business was transacted. On the 28th of February, 1829, Cornue sold the Canajoharie farm to Roof for $1600, with covenants of warranty. On the 14th May, 1832, Roof sold to Livingston Spraker the same farm, with warranty ; and on the 27th April, 1833, Spraker sold to Johnson, with warranty also. Now it is obvious that Cornue is the man who is ultimately liable to pay off the Kane mortgage, and Cornue is the one who is ultimately liable to pay the Van Camp bond and mortgage ; or, which is the same thing, to indemnify against it. He having sold the fifty acres with warranty to the complainant, on the 1st April, 1833, is bound to warrant and defend against that mortgage. The parties standing in this relation to each other, and Cornue being insolvent, it is evident that somebody must be the sufferer. The object of this suit is to determine on whom the loss should fall.
William James having, in September, 1826, become the assignee of both the Van Camp mortgage given to Cornue, and the mortgage given by Cornue to Kane for the same debt, (the Van Camp mortgage being collateral to the Kane mortgage) had a right to collect his debt on either mortgage. If, then, the complainant, perceiving this dilemma, had paid James the amount of his demand and taken an assignment of both the mortgages, could he not have enforced payment of the Kane mortgage out of the Canajoharie farm 1 That mortgage being the oldest incumbrance on the farm and not having been paid, could beyond controversy be collected out of that farm; and the occupant must look back to his immediate grantor for indemnity,
Instead, however, of adopting this course, the complainant remained silent, and Spraker made the purchase from the estate of James of the two securities. Is there any reason why he should not avail himself of the fruit of his vigilance 1 It is said by the complainant that he paid off the Kane mortgage, and thereby re-invested Cornue with the Van Camp moitgage, which has thus become extinct- But this allegation is not supported by the facts. If Spraker had purchased the Canajoharie farm subject to the mortgage given by Cornue to Kane, or if he was in any way bound to p-y that mortgage as a part of the consideration of his purchase, as is alleged in the bill, the complainant’s view of the case would be correct. But the answ'er denies the fact; and being responsive to the bill, is evidence for the defendants. The negotiation between Spraker and the representatives of James, cannot be called in strict legal language a payment. It was in fact a purchase of the two securities, with a view to use them in his own protection, and thus to require the complainant to look to Cornue for indemnity, rather than to be compelled to seek indemnity from that quarter himself. There is nothing improper or unfair in this transaction. Spraker and the complainant may be assumed to be equally innocent, and a loss is to be borne by one of them in consequence of the insolvency or fraud of Cornue. The rule is, that the loss is to he left with him on -whom it has fallen; and the equities being otherwise equal, the priority of time must determine the right—qui prior est tempore, potior est jure.” See opinions of Chancellor Kent, in Berry v. Mutual Ins. Co. (2 John. Ch. R. 603,) and of Chief Justice Savage, in James v. Morey, (2 Cowen, 316.) Spraker has first obtained the
I have hitherto considered the cate as if the equities were entirely equal. But it is by no means clear that such is the case. This branch of the subject may be reviewed in several aspects. It is said by the defendant, and I think truly, that Spraker has not only the prior but likewise the better equity. He purchased in May, 1832. The complainant did not purchase till April, 1833. Spraker’s right therefore to acquire the mortgage which Cornue gave to Kane on the Canajoharie farm, existed before the complainant had any interest in the matter. He also, as has been before stated, obtained an assignment of the mortgages and decree from the executors of James. He is thus lawfully in possession of the very subject of controversy.
The complainant purchased the fifty acre lot of Cornue in 1833, pendente lite. James filed his bill to foreclose the Van Camp mortgage on the said fifty acres in 1830; and Cornue took a re-conveyance from Van Camp in the same year, though subsequent to the commencement of the suit. The doctrine with regard to purchasers pendente lite has been fully considered by the courts in this state, and will be found amply explained and illustrated in Murray v. Ballou, (1 John. Ch. Rep. 566,) and several subsequent cases, (2 id. 444, 7 Wendell, 152, 8 John. R. 484, 7 Wendell, 157, 11 id. 442.) The established rule is, that a lis pendens duly prosecuted and not collusive, is notice to a purchaser so as to affect and bind his interest by the decree ; and the lis pendeiis begins from the service of the subpoena, after the bill is filed. The litigating parties are exempted from taking notice of a title so acquired ; for as to them, it is as if it had never existed. The rule may sometimes operate with hardship, but the general convenience requires it. (11 Ves. 194.)
It has been made a point on the part of the defendants, that the equity of the complainant’s bill, and on which the injunction was probably awarded, has been denied by the answer. Thus, that the material allegations in the bill, that Cornue furnished part of the money paid by Spraker to the executors of James on obtaining the assignment of the decree ; that the assignment was made at the request of Cornue; and that Spraker purchased of Roof subject to the Roof mortgage and agreed to pay James the balance of the Cornue mortgage to Kane, are all denied in the answer ; and that these allegations are not supported by proof. The case then stands before me solely on the effect of the transactions between the parties already adverted to, upon their respective rights and equities. On the whole, therefore I am of opinion that the bill cannot be supported as against the Sprakers, and must, as to them, be dismissed. That will of course dispose of the injunction, as I presume it was on its face a mere temporary injunction. With regard to Cornue, the bill might, perhaps, be retained if there was any object to be gained by it. The propriety of this course was not made a subject of argument, and I will therefore leave the cause, as to him, for such ulterior steps as may be deemed fit and proper.
It is perfectly clear that there was no merger of the Van Camp bond and mortgage, either in law or equity, by the re-conveyance to Cornue after the decree of foreclosure of that mortgage in favor of James, the assignee. As the interest in the bond and mortgage was in James, and the title to the land in Cornue, subject to the payment of the. mortgage debt to James, it is impossible to consider the interest in both as being united in the same person, so as to produce a merger. James, however, held the decree against the farm which then belonged again to Cornue, and the mortgage on the Canajoharie
The question, however, is not as between Van Camp’s personal liability and Roof’s farm; but it is between the subsequent grantee of that farm and the subsequent grantee of Cornue, the owner of the Preble lot under Van Camp’s quit-claim deed. And if, as against Cornue as such owner of the Preble lot, Roof or his assignee had an equitable claim to have the debt due from Cornue, and which was then secured to James by the decree against that lot as well as by the mortgage upon the Canajoharie farm, satisfied out of the property of the real debtor instead of the property of his grantee, Cornue’s subsequent conveyance to the complainant could not deprive the grantee of Roof of his prior equity arising from the previous deed.
Viewing the case in this light, it comes distinctly within the principle which is constantly acted on by this court, and other courts of equity, that where there is a lien upon] different parcels of land for the payment of the same debt J and some of those lands still belong to the person who ira equity and justice ought to pay such debt, and others have been transferred by him to other persons, his lands shall be first charged ; and if he has sold the several parcels at different times, they are to be charged in the inverse order of their alienation. (Gill v. Lyon, 1 John. Ch. Rep. 447. Clowes v. Dickinson, 5 Idem, 235. Stoney v. Shultz, 1 Hill’s Ch. Rep. 500. Gouverneur v. Lynch, 2 Paige’s R. 300. Guion v. Knapp, 6 Idem, 35.) Here the Canajoharie farm had been conveyed with warranty to Roof, and he had again conveyed to L. Spraker nearly a year before the complainant took his conveyance of the Preble lot from Cornue, which lot was then, in equity, the primary fund for the payment of Cornue’s debt to James.
The taking of an assignment of the mortgage upon theCannajoharie farm, simultaneously with the assignment of the decree against the Preble lot, for the avowed object of obtaining indemnity by means of that decree for the money then paid to the executors of James, cannot be considered as a payment of either the mortgage or the decree ; especially las the assignment was made to a third person as a trustee. ¿And according to the decision of this court in the recent case of Millspaugh v. McBride, (7 Paige’s Rep. 509,) it would not have operated as a merger or extinguishment so as to deprive the assignee of the equity which it was intended to secure to him, even if the assignment had been made directly to L. Spraker himself; or if Johnson who was then the owner of the Canajoharie farm had purchased the mortgages and decree and taken an assignment of them in his own name.
For these reasons the decree of the vice chancellor was right, and according to the settled principles of equity. It must therefore be affirmed with costs to the defendants D. Spraker and L. Spraker; but without prejudice to the right of the complainant to apply for such a decree against the defendant Cornue as he may think himself entitled to ; as authorized by the opinion of the vice chancellor.