Chapman v. Comings

The opinion of the court was delivered by Wheeler, J. The defendant had a right to buy in the debt he owed the estate of Merrick, and the mortgage to secure it, and had he done so, as he could not owe himself, the purchase would have extinguished both debt and mortgage. He also had a right to purchase with Chapman so far as Chapman could purchase an interest in it for himself. The law would not allow Chapman to purchase it for himself as against the estate of Merrick, of which, ho was administrator, unless those interested in the estate were willing he should. They had a right to repudiate the sale, and insist, upon keeping the debt and mortgage, or to treat the sale as valid, and take the avails of it. Mead v. Byington, 10 Vt., 116. The reason why Chapman could not purchase it as against the heirs is because it was his duty as administrator to sell for the highest price he could get, and when he became a purchaser he was interested to buy as low as he could, and this interest of his own would or might interfere with the just performance of his duty. But a purchase for himself and the defendant would create an interest in him only half as great as a purchase for himself alone ; therefore, as a purchase for himself, with the consent of those interested in the estate, would have been valid, a fortiori, a purchase for himself and the defendant, with like consent, was valid. The purchase by Chapman under the arrangement between him and the defendant was a purchase for both, and the defendant became the owner of the debt to the amount of one half the difference between the price of the debt and the face of it; that is, to the amount of $223.85, and to that extent the debt was extinguished, and he owed Chapman the balance, that is, $1223.85. As the defendant only owed Chapman the balance of the debt after deducting the defendant’s half of the difference between the price and the face of it, the agreement of the 11th June, 1868, amounted to this: that the defendant might have until the 1st January, 1869, in which to pay Chapman what was justly his due, and that if he did not pay by that time, he should pay Chapman $223.85 more than was justly his due. The only consideration 20 for this agreement to pay this sum of $228.85 was the giving of time to the defendant for payment of the debt, and if that was a consideration it was an unlawful one, because it was usurious. If it was not a consideration, then there was none for the agreement. In either event the agreement was not binding, and after the 1st January, 1869, the defendant owed Chapman no more than ho did before. • The transfer of the debt and mortgage to Amsden gave him no greater rights than Chapman had, and it is not claimed that it did. The decree of the court of chancery is reversed, and the case is remanded to that court, with directions to enter a decree of .foreclosure for the smaller sum reported by the master, $305.03, due October 19th, 1869, with costs in the court of chancery, except the costs of the reference to the master, deducting the defendant’s costs of this court.