55 Vt. 207 | Vt. | 1882
The opinion of the court was delivered by
This is a petition for. the foreclosure of a mortgage. It is defended by D. C. Linsley and the' Burlington & Lamoille Railroad Company. Subsequently to the execution of the mortgage, the defendant company located its road across the mortgaged premises, and constructed the same under a contract with Mr. Linsley by which he was to pay the land damages, construct and operate the road until the company paid him for so doing. In the execution of this contract, Mr. Linsley took from the mortgagor warrantee deeds, to himself, of that portion of the mortgaged premises required for the construction of the railroad, it being-stated in the deeds that the land conveyed was to be used for railroad purposes. His agent, the engineer, who conducted the negotiations and paid the consideration for the deeds to the mortgagor, knew of the existence of the mortgage, which was duly recorded. • He testified, and so the master has found the fact to be, that the agent did not request the mortgagor to have the consideration applied in reduction of the mortgage debt, but on the representations of the mortgagor, that his place was pretty nearly paid for, took his chances. The mortgagor paid the money received for the deeds conveying the right of way with other money to the oratrix, who applied the same in reduction of the mortgage debt. The oratrix, who was during all this time the owner of mortgage
By the warrantee deeds as against the oratrix, Mr. Linsley, and the railroad company under him, took only the title of the mortgagor, and under them can only make the same defence which the mortgagor could have made. He took his chances against the mortgage, and took the covenants of the mortgagor to secure him against any loss resulting from those chances. That those covenants are unavailing, through the insolvency of the mortgagor, is no concern of the oratrix ; and the loss, if any, resulting therefrom, is not to be visited upon her. She was not asked to, and did not, guarantee the title of the mortgagor. On the contrary, by the mortgage deed on record undischarged, she warned everybody that it was precarious, and dependent upon the mortgagor’s payment of the mortgage debt. That she received from the mortgagor, as his money, the consideration paid for the deeds of the mortgagor, does not affect her right to insist upon the entire mortgaged premises regaining security for that portion of the mortgage debt which remains unpaid. As regards the mortgaged premises, Mr. Linsley and the railroad company stand the same as any purchaser of the equity of redemption of the mortgagor. The purposes for which the purchased equity of redemption in the portion of the premises conveyed were to be used, do not vary the legal relations of the purchaser to the holder of the mortgage debt; nor does the fact that the railroad company, under the exercise of the right of • eminent domain, might have taken the oratrix’ interest in the mortgaged premises, and thereby obtained an
No other error is claimed to exist in the decree of the Court of Chancery. The decree affirmed, and cause remanded.