Loomis v. Knox

Andrews, C. J. This is a complaint praying to redeem certain mortgaged premises situated in the town of Suffield. Prior to the 8th day of December, 1888, Halsey J. Wright was the owner of two tracts of land in that town, one called the homestead and the other the pasture. On that day he mortgaged the homestead to the defendants, Waldo S. and Wallace Knox — who are spoken of throughout the case as Knox Brothers — to secure his note for the sum of four thousand dollars and interest. On the 9th day of May, 1888, *349 Chauncey S. Harris, having obtained a judgment against Wright for the sum of one hundred and eighty dollars, including costs, placed a judgment lien therefor on the homestead, and on the fifth day of June following caused another lien to be placed on the pasture to secure the same judgment debt. On the 4th day of April, 1889, Knox Brothers obtained a decree for the foreclosure of the homestead, the time limited for the redemption being the 18th day of August, 1889. Harris was not made a party to the foreclosure and had no notice thereof. On the 5th day of February, 1890, Knox Brothers conveyed the homestead by a warrantee deed to Allen Wilson, who is the other defendant in the case. Harris foreclosed his lien on the pasture, obtained title thereto, and took possession thereof on the 20th day of January, 1890. The pasture was of a value more than sufficient to pay the entire debt which Wright owed to Harris and all costs. Harris on said 20th day of January assigned all his interest in his judgment to Leverett N. Austin. On the 24th day of February, 1890, both Austin and Harris assigned all the remaining interest, if any, which they or either of them had in the judgment, to the present plaintiff; and on the same day Wright conveyed to the plaintiff all his right, interest and estate in the homestead. On the 8th day of March, 1890, Wright was put out of the possession of the homestead upon a judgment in ejectment obtained by Knox Brothers. On the 5th day of March, 1890, the plaintiff through his attorney tendered to Waldo S. Knox the sum of $5,650, that being the full amount due to Knox Brothers on the note of Wright, with all interest and costs. Knox refused to accept it. This action was brought on the 10th day of March, 1890. These are the controlling facts in the case. The Superior Court passed a decree allowing the plaintiff to redeem, found the value of the use and occupation of the premises, and required the defendants to execute and deliver to the plaintiff a release deed and to surrender to him the peaceable possession thereof. The defendants appeal. All the reasons of appeal are disposed of by answering *350 two questions. Did Wrigbt himself have aright to redeem tbe homestead at tbe time he made the deed to the plaintiff? And if so, was that deed a sufficient one to authorize the plaintiff to redeem? If both these questions can be answered in the affirmative then there is no error. These questions imply, and we think the law is so, that whatever the power or privilege to redeem the plaintiff has must come from Wright. He obtained no such right from Harris or Austin. It was decided by this court in Beardsley v. Beecher, 47 Conn., 408, that a judgment lien is a mortgage — a statutory mortgage. It therefore confers just such rights on the lienor as a mortgage would confer. The rights of the parties in this action are to be determined in the same way that they would be if Wright had made a second mortgage of the homestead to Harris on the 9th day of May, 1888, and on the 5th day of June of the same year had given a mortgage of the pasture as additional security to Harris for the same debt. By virtue of such a second mortgage Harris had the right to redeem the first mortgage held by Knox Brothers. The foreclosure of Wright, the mortgagor, by Knox Brothers, — Harris not being a party to that proceeding — did not cut off the right of Harris to redeem the first mortgage. His right to redeem that mortgage was left unimpaired. Beers v. Broome, 4 Conn., 247; Smith v. Chapman, id., 344; Swift v. Edson, 5 id., 531; Mix v. Cowles, 20 id., 427; Thompson v. Chandler, 7 Maine, 377; Moore v. Beasom, 44 N. Hamp., 215. There was also left in Wright an equity by virtue of which he could redeem the second mortgage owned by Harris, and by so doing would acquire the same right to redeem the first mortgage which Harris had? and become entitled himself to redeem that mortgage. Goodman v. White, 26 Conn., 317; Colwell v Warner, 36 id., 224; Jones on Mortgages, §1057. If Wright became possessed of such a right to redeem the homestead, he might of course convey it by any proper deed to the plaintiff. It is just that right which the plaintiff claims to be exercising in this action. The first question then comes to this : — Do the *351 facts show that Wright did redeem the second mortgage on the homestead from Harris ? The taking possession of the pasture by Harris under his foreclosure was the payment of the debt for which it had been a security, the land being of greater value than the amount of the debt. Bassett v. Mason, 18 Conn., 131. It paid that debt in the same way that a payment in money would have done. A payment by Wright of the debt he owed to Harris was a redemption of the second mortgage on the homestead and clothed Wright with a lawful claim by which he could redeem the first mortgage from Knox Brothers. As between Harris and Wright it can make no difference whether the debt was paid in money or was paid by the foreclosure of land. The debt was paid in either case. The second mortgage was redeemed in either case, and in either case the incidents of such redemption must follow, namely, the right to redeem the first mortgage. It is claimed that the deed from Wright to the plaintiff is void for the reason that he was ousted of possession at the time it was given. The dates show that at the time he was still on the homestead. He was not put out till some days after. But the objection vanishes when it is remembered that in giving the deed Wright simply passed to the plaintiff the right to redeem which Harris had. As to that right if Harris was not ousted Wright was not. There is nothing in the case to show, nor is there any claim made, that Harris was ousted. The possession of Knox Brothers was not adverse to the title of Harris nor to any grantee of his title. Knox Brothers may rightfully claim to have the full amount of their note with interest and all costs. Beyond that there are no equities in their favor. In their brief and in the oral argument it is intimated that the plaintiff is attempting in some way to do injustice to Wright. If that is so it does not entitle them to have anything more than their just dues. They may not do wrong to Wright because some one else is seeking to do so. *352 We -understand the law to be as laid down in 2 Swift’s Digest, 210, that if a mortgagee refuses to receive his money on tender after forfeiture, he will lose his interest from the time of the tender. There is no error in the judgment appealed from. In this opinion the other judges concurred.