People's Savings Bank & Building Ass'n v. Collins

Ellsworth, J. After the argument, we postponed the decision of this case until we should hear the case of West Winsted Savings and Building Association v. Ford, at Litchfield, which involved the principal questions presented by this case, and was to be argued during the present circuit.* That case we have now heard and decided; and as our reasons are fully given in that decision, and are in the main applicable here, we will not repeat them. It is true that the respondent here is not a stockholder as was Mr. Ford there ; but, in our view, he stands on no better ground for that reason, so far as it respects this mortgage. He is avowedly the purchaser of a mere equity of redemption, and has acquired and paid for nothing more. In the case of Waterman v. Curtis, (26 Conn., 241,) we held that if a creditor levies upon an equity of redemption, and it is set off to him, he cannot deny or call in question the validity of the prior incumbrance, especially for usury, of which the borrower is the proper person to complain if any one. This is held to be the law in several of our sister states as well as with us. Green v. Kemp, 13 Mass., 515. Reading v. Weston, 7 Conn., 409. Shurfelt v. Shurfelt, 9 Paige, 138. Dix v. Van Wyck, 2 Hill, 524. Flanders v. Jones, 10 N. Hamp., 160. Schermerhorn v. American Ins. and Trust Co., 14 Barb., 167. Morris v. Floyd, 5 Barb., 137. Sands v. Church, 2 Seld., 352. Brolasky v. Miller, 1 Stock. Ch., 812. As to marshalling the assets as claimed by the respondent, [146] we think there is no ground for doing it. The incumbrance was allowed to the respondent in the purchase by a deduction from the consideration, and it became his personal debt to pay. As between the mortgagor and himself he had assumed this debt, and he cannot now ask that the mortgagor’s property shall be first taken or applied in payment of it. The claim for costs after the December term of the superior court cannot be sanctioned. Such a case as this does not come within the terms of the statute. We advise judgment for the petitioners, for their debt, interest and bonus. In this opinion the other judges concurred. Decree for petitioners advised. Footnotes [*] Reported in the present volume, Litchfield County, April Term, 1858—post.