Waters v. Hubbard

Carpenter, J. This is a petition for a foreclosure. The petitioner holds three mortgages. The first is from the respondent Hubbard, and covers twelve lots of land, (including one subject to a prior mortgage, which was subsequently foreclosed, and from which the petitioner realized nothing,) to secure a note for six thousand dollars. The second is from Hubbard, and covers only two of the lots embraced in the first mortgage, and was given to secure a note for three hundred dollars. The third is from the respondent Wells, who purchased of Hubbard six of the lots described in the first mortgage, including the two described in the second mortgage, and assumed the payment of both the notes to the petitioner. This mortgage covers the lots so purchased by Wells, and was given to the petitioner to secure the payment of the two notes assumed by Wells as above stated. The decree forecloses Wells, in respect to the lots purchased and mortgaged by him, unless he pays within the time limited the full amount of both the notes. If he fails to redeem, Hubbard has an opportunity to redeem by paying the amount due on the large note, but he is not required to pay the small note. On a motion in error several objections are made to the validity of the decree. The first is that the petition is multifarious. The rule on this subject is well stated by Church, J., in Mix v. Hotchkiss, 14 Conn. R., 42, as follows:—“An objection to a bill in 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 [348] by the bill, though the defendants have separate and distinct interests, the bill is not multifarious.” In this case the petitioner has the legal title to all the land described in the mortgages, except the piece foreclosed by a prior mortgagee. The bill is brought to accomplish one object —the extinguishment of the equity of redemption. Both respondents are interested in that, and both are properly made parties. This objection ought not to prevail. The second and third errors assigned are in substance the same—that by the contract between Hubbard and Wells, by which Wells assumed and agreed to pay the debt to the petitioner, Hubbard’s relation to that debt became that of a surety, and that he was discharged from the payment of the same by the contract made between Wells and the petitioner, by which Wells gave, and the petitioner accepted, the third mortgage; and that the court ought to have so decided. We think there was no error in this. Whatever may have been the relation which Hubbard and Wells sustained to each other as between themselves, as against the petitioner it is obvious that the relation of Hubbard to the mortgagee was not changed; he remained the principal debtor still. There was no novation; Hubbard’s notes remained outstanding, and he alone was liable thereon in an action at law. The agreement of Wells to pay the same, and the mortgage given to secure performance, were accepted as additional security, with no intention to discharge Hubbard. On this point the finding is clear and conclusive. In the fourth assignment of error it is objected that the court ought to have decided that, the mortgage debt being as to Hubbard paid, Hubbard was entitled to redeem that part of the property which was foreclosed by Montgomery, the prior mortgagee, upon paying the petitioner the amount paid by him, including costs and interest, to Montgomery. This objection rests upon an assumption which is true neither in fact nor in law—that the mortgage debt as to Hubbard was paid. The taking of security from a third party, there being no substitution or novation, is not, in law, the payment of the debt. Nor is it easy to see upon what princi [349] pie Hubbard is entitled to redeem the land foreclosed by Montgomery. His equity of redemption was extinguished when the decree took effect. The subsequent purchase of that' property by the petitioner was an independent transaction, in no way affecting Hubbard, and there was no contract by which he acquired a new right to redeem. There was no error therefore in the ruling of the court that he was not entitled to redeem the Montgomery property. The last claim that is made is, that the court ought to have decided that the property mortgaged by Wells to the petitioner to secure the payment of the debt therein described, should be first appropriated to the payment of the same, before taking for that purpose the other property of the respondent Hubbard. The authorities cited in support of this claim are from the state of New York. In that state the process of collecting a mortgage debt is by a sale of the property and an appropriation of the proceeds to the payment of the debt. If that practice prevailed here it would be manifestly just and equitable that the Wells property should be first sold. But our practice is entirely different. Under that the petitioner is entitled to all the property mortgaged unless his debt is paid. There is no error in the judgment of the court below. In this opinion the other judges concurred.