Mix v. Hotchkiss

Church, J. The plaintiffs in error complain of the proceedings of the court below, for several reasons. 1. That the bill should have been adjudged multifarious, upon the demurrer. An objection to a biffin equity for multifariousness, is well taken, when several plaintiffs, by one bill, demand several matters perfectly distinct and unconnected against one defendant ; or when one plaintiff demands several distinct and unconnected matters against several defendants. But where one general right is claimed by the bill, though the defendants have separate and distinct interests, the bill is not multifarious. Fellows v. Fellows, 4 Cowen, 682. Brinkerhoff v. Brown, 6 Johns. Ch. Rep. 139. Cooper’s Eq. Pl. 182. 2 Sw. Dig. 222. 2 Madd. Ch. 234. Mitford’s Pl. 182. If these principles be applied to this bill, we think it .will be apparent that the demurrer was properly overruled. The plaintiffs are mortgagees of the entire property sought tobe foreclosed,under original mortgage deeds, or by assignment ; and all the defendants claim title to or liens on several portions of the property of which the plaintiffs are the first mortgagees. The position of the plaintiff's, therefore, is not an uncommon one. They claim one general right, which is, to foreclose all who make claim to any portion of the mortgaged premises, by subsequent titles. Isaac Mix, Thomas Mix, and Isaac Mix, jr., on the 28th of February, 1837, were indebted to the plaintiffs, by a con [43] ditional note of twenty thousand dollars ; and for its security, they then mortgaged to the plaintiffs a part of the land and buildings described in this bill; and at the same time, and to secure the same debt, Isaac Mix mortgaged to the plaintiffs the remainder. These two mortgages, being executed at the same time, to the same creditors, as a security for the same debt, constitute but one pledge, and are so to be treated. On the 7th day of June, 1839, Isaac Mix Jp Sons again mortgaged to the plaintiffs a part of the same premises before mortgaged to secure another debt. And on the 15th day of Julyf 1839, the plaintiffs took an assignment from William Mix of a mortgage holden by him against Isaac Mix of a portion of the property, which the said Isaac Mix had as aforesaid mortgaged to the plaintiffs. This mortgage was the eldest lien upon the premises. These several mortgages constitute the plaintiffs’ right; and they are all, with the exception of the mortgage of June 7th, 1839, prior to any rights claimed by any of the defendants. And the bill does not seek to foreclose the mortgage of June 7th, 1839, as against any of the defendants, who stand before it. 2. We think the decree of the superior court is in conformity with the rights of all the parties to the bill. Isaac Mix <§• Sons, on the 12th of May, 1838, and the 26th of February, 1839, mortgaged a part of the premises to George C. Mix, one of the defendants. These mortgages were subsequent to the plaintiffs’ mortgage of the 28th of February, 1837, upon the same premises. And the decree of the court is, that he and his assignees, Silas Mix and Elizur Hubbell, be foreclosed, unless they pay the debt secured by the plaintiffs’ mortgage of the 28th of February, 1837. Isaac Mix 3f Sons, also, on the 28th of May, 1838, mortgaged another part of said premises to Jesse Peck, another defendant. This mortgage being subsequent to the plaintiffs’ mortgage of the 28th of February, 1837, upon the same land, the decree of the courtis, that he be foreclosed, unless he pay the debt secured by the aforesaid mortgage of the plaintiffs. Isaac Mix, on the 29th day of April, 1837, mortgaged a parcel of the land by him first mortgaged to the plaintiffs as aforesaid, to Elizur Hubbell. This mortgage being subsequent to the plaintiffs’ first mortgage upon the same land, the decree of the superior court is, that he pay the debt secured [44] by that prior mortgage, or be foreclosed. And the decree of -the superior court requires that the said Isaac Mix wad Isaac Mix Sons, who are parties to the first mortgage to the plaintiffs, and their assignees, shall pay the entire incumbran-ces upon the land thus mortgaged, or be foreclosed. Now, in respect to the general subject, to wit, the mortgage of the 28th day of February, 1837, and the lands incumbered by it, the rights and interest of George C. Mix, Jesse Peck and Elizur Hubbell, are distinct from each other, because their mortgages are upon separate and distinct parcels of that land ; yet they are all interested in the first mortgage to the plaintiffs, and neither can redeem his own until that which is an incumbrance upon it, shall be paid. These facts bring the case within the operation of the principles before advanced, and within the principle laid down, by the chancellor, in the case of Brinkerhoff v. Brown, 6 Johns. Ch. Rep. 157. that “a bill against several persons must relate to matters of the same nature, having connexion with each other, and in which all the defendants are more or less concerned, though their rights in respect to the general subject of the case may be distinct.” Whaley v. Dawson, 2 Sch. & Lef. 367. This bill, therefore, is not multifarious ; and the decree is unobjectionable in the matters aforesaid. 3. Other objections to the decree require consideration also. George C. Mix, by his separate answer, claimed, that the securities should be so marshalled, as that the plaintiffs should be confined to such part of the mortgaged premises as had not been mortgaged to him. The general principles of ‘equity in regard to the marshalling of securities, are well understood ; but whether they are applicable to our system, in cases w'here we do not direct the sale of the premises, is the question. We do not know, that they have ever been applied to mortgages of real estate here, as they have been in states and countries where the foreclosure of mortgages is effected, by a sale of the premises. Nor do we see how they can be, without essentially interfering with the rights of mortgagees as secured by contract. Where mortgaged premises are sold to satisfy incumbrances, there can be no injustice in compelling a first mortgagee to resort, in the first instance, to lands unincumbered by other liens. He is entitled to satisfaction in money ; and no matter to him where he begins to sell. But [45] in this state, the mortgagee, upon foreclosure, receives the land itself; and it would be manifest injustice to compel him - to receive less than is secured to him by his deed. It would seem very much like impairing the obligation of a contract, by judicial authority. The contract is, that the mortgagee shall hold the whole land mortgaged until the whole debt is paid; and who shall say how much less is adequate security, when the parties have said that nothing less will be? No injustice can be done, by refusing to interfere with the rights of the original parties as settled by themselves, because a subsequent incumbrancer, (George C. Mix, in the present instance,) by paying the original debt, becomes entitled to all the rights of the first mortgagee. The true principle of marshalling securities, where it is proper to do it at all, is well stated, by Spencer, Ch. J. in the case of Evertson v. Booth, 19 Johns Rep. 493. “A court of equity will take care not to give a junior creditor this relief, if it will endanger thereby the prior creditor, or in the least impair his prior right to raise his debt out of both funds. Where there exists any doubt of the sufficiency of that fund to which the junior creditor cannot resort, or even where the prior creditor is not willing to run the hazard of getting payment out of that fund, I know of no principle of equity, which can take from him any part of his security, until he is completely satisfied.*’ 4. The superior court found due to the plaintiffs fifty-three dollars and eight cents, for premiums of insurance paid by them upon insurance of the buildings mortgaged, and also the sum of one hundred and thirty-six dollars, and seventy-four cents, for taxes upon the mortgaged property ; and these sums are included in the amount to be paid by the defendants? upon a redemption ; and this part of the decree is objected to. We need not determine whether, in ordinary cases of mortgages, the mortgagee would be warranted in effecting policies of insurance upon buildings, and charging over the premiums to the mortgagor; because, in the present case, it appears, that the insurances were effected at the request of the mortgagor ; and in such case, there can be no doubt of the propriety of the charge. The amount paid for taxes was properly allowed: it was an advancement necessary for the protection of the estate. Hamilton v. Denny, 1 Ball & B. 202. Lord Trimleston v. Hamill, Id. 377. [46] 5. Exceptions have also been taken to the execution and - recording of the deed from Isaac Mix ⅝ Sons to the plaintiffs, of the 28th day of February, 1837. Isaac Mix and Thomas Mix made a good execution and delivery of that mortgage, so far as they were concerned, and it was duly recorded so as to bind their interests and give preference to the plaintiffs, unless the subsequent execution of it by Isaac Mix, jr., under the circumstances found by the superior court, was such an alteration of it as to render it void. We do not think any such effect was produced, by the execution of the deed by Isaac Mix, jr. It was originally contemplated, by all the parties to that deed, that it should be subsequently executed and delivered by Isaac Mix, jr., in the very manner in which it was done. It was executed, by the consent of all persons interested. This deed, after having been first duly recorded, was received by the grantors from the town-clerk, and on the 29th day of April, 1837, was executed by Isaac Mix, jr., by Isaac Mix, his attorney, by virtue of a power of attorney. This power of attorney was well recorded, and although, not upon the same page or leaf of the book of records with the mortgage deed, but at a distance of eighty pages from it; yet as it was duly entered upon the alphabet, and thus placed within the reach of every person who had occasion to examine the records, it was recorded with the deed, within the meaning of the statute on that subject. But whether this power of attorney, or the deed itself, after its execution by Isaac Mix, jr. was well recorded, or not recorded at all, we need not inquire ; because it is expressly found, that George C. Mix and Jesse Peck, who alone became subsequently interested in the lands embraced by this mortgage, had full knowledge of it, when they received their respective deeds. Upon a careful consideration of the several objections to the proceedings of the court below, we are of opinion, that there is no error in the judgment and decree of the superior court. In this opinion the other Judges concurred. Judgment affirmed.