31 Vt. 142 | Vt. | 1858
I. It is claimed that Allen is improperly joined in this bill. He is merely in the chain of title, having purchased the premises of the mortgagor and conveyed them by deed of warranty. In this way he has an incidental interest in the question, but no such direct interest in the case as to make it necessary to join him, in order to render the decree final and conclusive upon the title. The interest of Allen is merely incidental, and is exclusively between him and the subsequent grantees. And it is certain there was no necessity of joining him. The notice to him would more properly come from those who claimed indemnity from his covenants.
Whether one having such an incidental interest, and having been joined, and made no objection upon that ground till the final hearing in this court, can claim to be dismissed with costs, is perhaps more questionable. Where no litigation is expected, it not being necessary to join such party, the extra costs of such joinder should not be visited upon the party confessedly bound to redeem. But here litigation seems to have been expected, and Allen is the party ultimately to be affected by the event of such litigation. If he choose to be dismissed without cost, or without cost except so far as the expense of the litigation has been increased by his joinder, that is probably his right now, strictly and technically speaking. And any costs, which have accrued since Allen’s appearance and the final hearing, are waived, by not objecting to the joinder. 3 Story’s Eq. Pl secs. 225, 236.
II. Upon the merits it seems to us the condition of the mortgage will bear no such restricted construction as that claimed by the defendant. It does in terms extend beyond the specific liability named, and include “ all sums that the plaintiffs may become liable to pay by signing or otherwise ;” i, e. all sums they may become liable to pay on account of Albee in any way. The condition does then, in terms, point to a future liability. And that no sum or limitation is given is not material, as it seems to us. The naming of a gross sum, as a limitation, amounts to nothing practically. This may be one thousand dollars, or ten thousand dob
It seems to us, upon the proof, that A. G. Soule had no other indemnity for paying the money to Albee except the promise of the plaintiffs to refund the money, in the event of his being held liable upon the trustee process. It was virtually advancing the money to the plaintiffs on their promise to repay it, in the event of A. G. Soule being held upon the trustee process. The plaintiffs would have a right to recover the money of Albee in case of being compelled to refund it to A. G. Soule, but A. G. Soule would have no such right, for he stipulated for none, but on the contrary declared he should look exclusively to the plaintiffs.
Such an undertaking is clearly not within the statute of frauds. It is an original and not a collateral undertaking. And as it was not within the statute of frauds, so it was no attempt to explain the condition of the mortgage by parol, but to show a case of lia/bility under it.
And we see no reason to doubt that it was a valid undertaking, and one which A. G. Soule might have enforced against the plaintiffs. And as it was clearly assumed on the behalf of Albee, we see no reason to doubt that it was within the very terms of the condition of 'the mortgage.
Decree of the chancellor affirmed.