Walker v. King

| Vt. | Feb 15, 1873

The opinion of the court was delivered by

Wheeler, J.

The orator appears to have taken a mortgage of the equity of redemption of three prior mortgages. The defendants, Flint and Hosier, appear to have purchased the equity of redemption of the first two mortgages at the price of eight hundred dollars, which they were to pay on the third. The balance of the third mortgage does not appear to have been paid off by any of the parties to this suit, and probably was extinguished by the administrator of the mortgagor, as it was his duty towards these parties to extinguish it. When these defendants purchased the interest and rights of the mortgagor and went into possession, they became entitled to the rents and profits of the premises, without accountability to any one, the same as the mortgagor himself or his administrator would have been entitled had the possession of the premises remained in either of them. And when they paid off the first two mortgages, and eight hundred dollars of the third, they, by subrogation, acquired all the rights which the respective mortgagees had by virtue of their mortgages, to the extent to which they paid off the mortgages. To the extent to which the administrator of the mortgagor extinguished the third mortgage, the orator was not bound to respect it at all, for it was paid by the party who, as to all the other parties, ought to pay it. But the mortgages to the extent to which they were paid off by the defendants, constituted a part of their title to the premises, and the orator was always bound to respect those mortgages to that extent. These defendants, as between their vendor and themselves, were not bound to pay the orator’s mortgage, but were to have the premises for what they were to pay on the others, and should they be compelled now to either redeem the orator’s mortgage, or permit him to redeem the premises upon payment of what they paid at the time of their purchase, without interest, it would be compelling them to pay the amount of his mortgage more than they were to pay for the premises, or else to allow him to take the premises from them now at the price they paid for the premises then. This would be holding the defendants to stand all risk of a fall in the value of the premises, and allowing the orator to watch and take advantage of a rise in the value to improve his security, without risk, and would be very unjust to the defendants; while to allow them to stand upon the title which they acquired by paying off the mortgages to the extent they did, just as the mortgagees 'could have stood upon them if they had held them till now, will- be more nearly just to them, and will do no injustice to the orator, for that will permit him to stand as mortgagee of the equity of redemption of the mortgages prior to his, which was where he placed himself when he took his mortgage, and where he was contented to stand ever after, until he commenced this proceeding. He has all the while had the right to foreclose his own mortgage by redeeming the prior ones in the hands of the defendants, all of whom stand upon the rights of Mint and Mosier, but, as he has chosen to lie by and let the interest accrue rather than to do so, he cannot now be permitted to foreclose his mortgage without redeeming those, with interest.

The mortgage to the South Royalton Bank at the time it was taken by Mint and Mosier, had, as against the mortgage piemises, become merged in a decree of foreclosure, which bore simple interest only, and the defendants are entitled to simple interest only upon that mortgage. The mortgage to Wood bore annual interest, and was never merged, and. the defendants are entitled to stand upon it according to its terms. The-Nancy Stafford mortgage bore only simple interest,, and that only is claimed by the defendants.

Decree of the court of chancery reversed, and cause remanded, with mandate to enter a decree of foreclosure for the orator upon the redemption by him of the South Royalton Bank mortgage, and the Nancy Safford mortgage, reckoned at simple interest, and the Wood mortgage, reckoned at annual interest.