Citizens National Bank v. Trustees of Middletown Academy

The Chancellor. When land subject to incumbrances is sold successively in parcels, each of them will be liable in the inverse order of alienation. If a judgment or mortgage is a lien on three tracts of land belonging to the same person, who sells one of them to A, another afterwards to B, and finally the third to C, A is entitled to exoneration at the expense of B and C, while B has a similar right against C ; and if an execution is issued under such circumstances, on the judgment, the court may direct that C’s land shall be first exposed to sale, next B’s; and that A’s shall not be sold unless the other tracts do not produce enough to satisfy the debt. If this rule or principle, which seems to be well established in American jurisprudence, be correct, it follows, I think, that where any number of persons •— for example five or more-—-have recovered several judgments against the common debtor, and the said common debtor has alienated one tract of land which was bound by said judgments, retaining possession .of one or more■—-for example five—other tracts of land not alienated by him, the tract of land alienated is entitled to exoneration in like manner and upon the same principle ; and where an execution or executions has or have been issued on any of the said judgments, the lands -not alienated shall be first exposed to sale ; and that the land alienated shall not be sold unless the other tracts not alienated do not produce enough to satisfy the debts. [599] In Harbert's Case, 3 Coke, 30, it was resolved that if A be seised of three acres, and acknowledge a recognizance or statute, and enfeoff B of one acre and C of another, and the third acre descends to his heir, if execution be sued out against his heir, he shall not have contribution against the purchasers ; “ for the heir sits in the seat of his ancestors.” The same principle applies, says Chancellor Kent, if there be several purchasers in succession at different tiroes; the last cannot call on the previous one to contribute, for he sits in the seat of his grantor, and must take the land with all its equitable burdens. It cannot be in the power of the debtor, by the act of .assigning or selling his remaining land, to throw the burden •of the judgment, or a ratable part of it, back on the first purchaser. In the case of Gill v. Lyon, 1 Johns. Ch. 447, it was •decided that a purchaser of a part of lands mortgaged from the mortgagor is not bound to contribute ratably with the" purchaser of the equity of redemption under a judgment subsequently obtained, towards the discharge of the mortgage, unless the residue of the mortgaged premises prove insufficient to extinguish the debt. See Allen v. Clark, 17 Pick. 55. In Mevey’s Appeal, 4 Pa. 80, where it appearing that A had mortgaged twenty-seven acres of land to B, and after-wards mortgaged ten acres thereof to C, which were sold under C’s mortgage and released by B, and that A then sold three acres of the remaining seventeen acres to D, with general warranty,—it was held that B’s assignee could not sell the three acres under the mortgage of A to B until he had sold the fourteen acres not released, and then only for the deficiency. Further, on this subject, see notes to the case of Aldrich v. Cooper, 2 Lead. Cas. Eq. 291. A preliminary injunction is therefore granted against the isole by the sheriff of the house and premises purchased by the complainants, until after the sale of the other allotments advertised to be sold by the sheriff.