George v. Wood

Hoar, J. It must be considered as settled that when the owner of an equity of redemption conveys by deed of warranty a part of the mortgaged premises, neither he, nor his heirs, nor subsequent grantees with notice of the remaining part' of the mortgaged premises, are entitled in equity to contribution from the first grantee, toward payment of the m<_ rigage debt. Chase v. Woodbury, 6 Cush. 143. Bradley v. George, 2 Allen, 392. George v. Kent, 7 Allen, 16. Kilborn v. Robbins, 8 Allen, 466. The land remaining in the mortgagor is first chargeable, and the equity of his vendee will be enforced against any subsequent purchaser from him with notice. Allen v. Clark 17 Pick. 47. The weight of authority seems to be that this equity of a [83] purchaser from the mortgagor is one which the mortgagee must regard, if he has actual or constructive notice of it. Parkman v. Welch, 19 Pick. 231. Brown v. Simons, 44 N. H. 475. 1 Wash-burn on Real Prop. 572, and cases cited. 4 Kent Com. (8th ed.) 189, n. If the mortgagee, therefore, releases a part of the mortgaged estate to a purchaser, he must abate a proportionate part of the mortgage debt, if it be necessary to protect a prior purchaser, of whose title he had notice when be made the release. The equities between successive purchasers from the mortgagor will be in the order in which they take their conveyances, if the subsequent purchasers have notice of those which precede. Guion v. Knapp, 6 Paige, 35. Clowes v. Dickenson, 5 Johns. Ch. 235; S. C. 9 Cow; 403. These principles must govern the rights of the parties to this suit; and the first question is, whether the defendant, when she executed the release of the lot purchased by Pierce, had notice of the prior conveyance to the plaintiff. His conveyance was on record, which he contends was constructive notice. The release was to the original mortgagor, and there is no proof of any other notice than the record of the plaintiff’s deed. It has been held in New York that the recording of a second mortgage is not constructive notice to the mortgagee under a first recorded mortgage. Wheelwright v. Depeyster, 4 Edw. Ch. 232. Talmadge v. Wilgers, Ib. 239, n. Cheesebrough v. Millard, 1 Johns. Ch. 409. Stuyvesant v. Hone, 1 Sandf. 419. The same doctrine has prevailed in Pennsylvania. Taylor v. Maris, 5 Rawle, 51. And it was adopted by Mr. Justice McLean, of the supreme court of the United States. 3 McLean, 603. The question is not free from difficulty, but we are not aware of any adjudged case to the contrary; nor indeed of any case m which the record of a deed has been held to be constructive notice to any persons other than subsequent purchasers, or those claiming title under the same grantor. 2 White & Tudor’s Lead. Cas. in Eq. (Amer. ed.) 193. In Parkman v. Welch, ubi supra, it is to be observed that no question seems to have been suggested in the argument or decision as to the necessity of any notice to the mortgagee • and no allusion is made in the opinion [84] to the effect of any prior equity resulting to the prior purchaser from the mortgagor. The case apparently rests upon the idea that all parts of the mortgaged premises were equally liable to contribute in proportion to their value, in the hands of separate purchasers, without regard to priority; and that the release of one parcel by the mortgagee would be a discharge pro tanto of the mortgage. In these respects it is not easy to see how the case can be reconciled with Allen v. Clark; and it is certainly inconsistent with the recent decisions of this court to which reference has been made. But these points, although necessarily involved in the decision, were not brought to the attention of the court; and the case of Allen v. Clark was decided before the justice who gave the opinion in Parkman v. Welch came upon the bench, and had not then been reported. In Brown v. Worcester Bank, 8 Met. 47, the right of a prior purchaser of a part of an equity of redemption to exemption from contribution to purchasers of the residue was not noticed by Mr. Justice Wilde, who gave the opinion in Allen v. Clark, although it apparently existed. But it is now firmly established as a rule in equity in this commonwealth. When, however, the purchaser seeks to enforce his equity against the mortgagee, it is reasonable to require strict proof of notice. He takes his title with full knowledge that it is subject to the mortgage; and if he does not perfect it by a release, he ought not to subject the mortgagee to the constant necessity of investigating transactions between the mortgagor and third persons subsequent to the mortgage, in order to protect him; when by giving notice he can so easily protect himself. The establishing of -such mere collateral equities, which do not affect the legal title, cannot be considered as within the purposes intended to be accomplished by the statutes for registration of deeds. The only remaining point which has been argued relates to the priority of equities between the plaintiff and Finley. .The plaintiff contends that Finley’s title preceded the grant to Pierce • and that the release to Pierce being made with notice of Finey’s title, as shown from the recital in the release that the and bounded on a corner of Finley’s land, discharged Finley [85] from the obligation to pay the proportion of the mortgage which should have been borne by the Pierce lot; and that as Finley’s title was subsequent to the plaintiff, the plaintiff is deprived of any right of subrogation against him. But the facts do not find when Finley’s title was acquired, or his purchase money paid. The only deed to Finley, which it is agreed ever existed, was subsequent to both the plaintiff’s and Pierce’s. If the recital in the release is proof of an earlier title, the similar recital in the plaintiff’s deed would prove in like manner that Finley had a priority over the plaintiff. But we think a conclusive answer is, that this question of contribution cannot be settled without making Finley a party to the suit, which the plaintiff has not done. Avery v. Petten, 7 Johns. Ch. 211.