Wood v. Hubbard
50 Vt. 82
Vt.
1877
Check Treatment

The opinion of the court was delivered by

Royce, J.

The bill alleges that H. W. Heaton, as executor of W. B. Hubbard, at the Court of Chancery, held at Montpelier, on the second Tuesday of March, 1875, obtained a decree of foreclosure against the defendant and said Abel Wood and L. T. Kinney, of certain premises in Montpelier, by which it was ordered *86and decreed that unless the defendant Hubbard should pay to the clerk of the court for the benefit of the said Heaton the sum of $629.89, with interest, on or before the 1st day of April, 1876, he should be barred of his equity of redemption. And that unless the said Wood and Kinney should pay said sum on or before the 21st day of April, 1876, their equity of redemption should be foreclosed and barred ; that the defendant Hubbard did not pay the samo, and that the said Wood paid the same on the 11th day of April, 1876; and prays that the equity of redemption of the defendant in the premises be foreclosed. It appears by the decree in the case of Heaton against Hubbard, Wood and Kinney, which is referred to in the bill, that Wood held a mortgage of the premises foreclosed in that suit, executed subsequent to the mortgage from the defendant to W. B. Hubbard, which was the reason of making Wood a party defendant in that proceeding. The plea admits the payment of the money by Wood as alleged in the bill, and alleges that prior to the obtaining of said decree, Wood had commenced proceedings to foreclose his mortgage against the defendant, which was still pending, and claims that the payment so made by Wood was to protect his rights under his mortgage, and that the legal effect of the payment was to discharge the mortgage upon which the decree was obtained, and that the claim of Wood on account of said payment, became merged in his mortgage, and must be recovered, if at all, in his proceedings instituted to foreclose that mortgage. Wood did not pay the money as a volunteer, but paid it under the order of the court, to protect his equitable interest in the premises; and -when money is so paid, we understand that the party paying it is subrogated to all the rights and equitable liens of the party for whose benefit, or to whom, it is paid. Heaton was entitled to the money ordered to be paid by the decree or to the premises therein described, and Wood having paid the money, his estate is eniitled to its repayment or the property described in the decree. Neither is this claim merged in Wood’s mortgage. It does not grow out of the claims his mortgage was given to secure, and is wholly independent thereof.

The motion to dismiss was properly overruled, and the decree of the Chancellor is affirmed, and cause remanded.