| Conn. | Jul 15, 1845
It is insisted, on the part of the defendants, that the plaintiff stands in the character of a purchaser of the first mortgage ; that as Smith has failed to pay off that, within the time allowed him by the decree, he has become foreclosed of all his rights ; and the defendants, having tendered to the' plaintiff the amount of the first mortgage and the costs of suit, before the expiration of the time limited for them to redeem, are now entitled to the whole property, unincumbered by any lien on account of Smith’s mortgage. '
If the plaintiff were but the holder of the first mortgage, the defendants would not be entitled to the rights which they now claim. Did they stand, in this case, as second mortgagees, having a lien upon the whole equity, and Smith as a third mortgagee, foreclosed of his rights, by the decree, then their claim would be well founded.
But such is not their condition. They took, not as mortgagees, but as levying creditors. The whole equity of redemption was not set off to them upon their execution, but only an undivided share. This gave them an indefeasible estate in that portion of the equity, with a right to pay a corresponding portion of the mortgage debt, and thereby acquire a perfect and indefeasible title to an undivided share of the whole property. Allyn v. Burbank, 9 Conn. R. 151.
Smith, by virtue of his mortgage from Spafford, and the decree of foreclosure passed upon it, became the owner of the residue of the equity, with a like power to redeem his share. Smith and the defendants thus became tenants in common of the equity of redemption, each party owning an undivided share, and bound to pay a corresponding share of the incumbrance. A foreclosure of the rights of one party would not increase those of the other. Nor would he be entitled to redeem more than his share of the property, without the consent of the holders of the first mortgage.
It is true, they could not be compelled to accept payment of their debt, partly in money, and partly in an undivided share of the property mortgaged. They had a right to say to the party coming to redeem, “ pay us our whole debt, or we will receive nothing.” But still, if they had extinguished the right of one of the tenants in common to redeem, they were under no obligation to part with that share acquired by
If one tenant in common is compelled to pay off the whole incumbrance, and takes to himself a transfer of the legal title, the share of the mortgage which it belonged to him to pay, becomes extinguished ; his title to his portion of the property is perfected; and as to the residue of the first mortgage, he becomes subrogated to the rights of the first mortgagee, and has a right to call upon his co-tenant to pay him that share, or be foreclosed of his right to redeem.
Whether, therefore, the plaintiff is to be considered what he claims himself to be, the purchaser of Smith’s share of the equity, with the right to redeem a corresponding portion of the mortgage, or as merely the purchaser of the first mortgage, as the defendants insist, the defendants’ rights will remain the same. They cannot compel him to receive more of the first mortgage, than will be sufficient to redeem their share of the property. As to the remaining share, they have no equitable title to it, and cannot compel the plaintiff to part with it, without his consent.
The plaintiff having paid the whole amount of the first mortgage, is entitled to call upon these defendants to contribute their share, or forfeit their interest in the equity of redemption.
With respect to the testimony contained in White’s deposition, the view already taken of the case, renders that testimony unimportant. Still, however, as it is alleged in the bill, that the plaintiff paid off the prior incumbrance by the procurement of Smith, we see no reason why that averment may not be proved, and why parol testimony was not admissible for that purpose.
We therefore advise the superior court to grant the prayer of the bill.
Decree for plaintiff.