Lyon v. Robbins

Granger, J. The first objection made by the respondents in this case to the relief sought by the petitioner in her bill is, that the moi’tgage to Castle was void, because it was a conveyance by metes and bounds, of a part of certain lands held by tenants in common, by a part only of the tenants in common. Conceding the correctness of the general rule which makes such a conveyance void, yet we think the respondents stand in a position in which they can not be heard to make this objection. Castle, the mortgagee, brought a bill for a foreclosure against the present respondents and petitioner. In that case the court found the fact of the mortgage and the amount due under it, and made a decree limiting the time for redemption. In this the court necessai-ily found, and established as between the parties to that proceeding, the validity of the mortgage. After the decree had taken effect the present respondents, Robbins and Dwight, purchased the title acquired by Castle by the mortgage and foreclosure, paying him the amount due under the mortgage and the costs; a mode of redemption — 522 — apparently arranged beforehand between these respondents and the mortgagee, the title being allowed to become absolute under the foreclosure for the purpose of cutting off all other claims. The present petitioner then brought a bill to redeem against Robbins and Dwight, averring that she had no notice of the petition for foreclosure, and offering to pay the amount paid by them to Castle with interest. Upon this bill the court found the facts as alleged, and passed a decree allowing the petitioner to redeem on making such payment. In this decree the court again found the existence and necessarily the validity also of the mortgage to Castle. Thus this very point, which the respondents now make, as to the validity of the mortgage, has been adjudicated not only in the foreclosure suit of Castle against the present respondents and petitioner, which would perhaps be conclusive against the respondents in the present suit, but again in the suit brought by the petitioner to redeem, in which case the parties were the same as in the present case. We think it clear therefore that the question can not be regarded as an open one in the present case. The respondents make the further point that the matters set up in the present bill are to be regarded as having been adjudicated in her former bill. It is to be observed that this question is not properly before us. The case stands upon a demurrer to the petitioner’s bill. The respondents in their demurrer assign several causes of demurrer, in the form usually adopted in cases of special demurrer, while the causes assigned are wholly grounds of general demurrer, if they can be raised at all in that mode. Among these causes of demurrer there is assigned the fact of this former adjudication. But this fact does not appear on the record, and the demurrer can reach nothing that does not so appear. It is stated that the record of the former proceeding is referred to and made a part of the petition. This, however, is not so. The only allusion to that record is in the suggestion that it is ready to be produced in court. What it is, what its averments are, and what the precise relief sought, does not appear from the present petition. But as this question may be raised in the case hereafter, we think it best to consider and decide it here. — 523 — The petition in that case set np the fact of the mortgage, the foreclosure obtained by Castle, the amount found due on the mortgage, the expiration of the time to redeem without redemption, the purchase of the mortgage title by the respondents for the amount of the mortgage debt, the failure of the petitioner to receive notice, and her equitable right to redeem the property out of the hands of the respondents by making to them the payment that under the decree she was required to make to Castle. Her present petition alleges the same general facts, and her payment to the respondents since the decree of the amount found to have been paid by them to Castle, with interest, as also her equitable right to a contribution from.the respondents towards the amount which she had paid on redemption, and their refusal to make such contribution. Now it is very obvious that these two bills do not contain substantially the same allegations, nor seek substantially the same relief. The claim of the respondents therefore, that the two bills were for the same matter, so that the subject matter of the last petition is to be regarded as adjudicated in the former suit, has really no foundation. But the real point, though not presented very clearly by the record, is, whether the proper time and place for the petitioner to seek the relief which she now seeks was not in the former suit. In other words, as she now seeks re-payment'of three-fourths of the sum which she paid the respondents under the former decree, thus paying only one-fourth of the sum herself, was she not bound to ask in that suit for a redemption of her interest in the property, on paying this quarter, and not the whole? We think that the petitioner might have so framed her bill in the former case that the court could have disposed of the whole question between these parties in that suit, and that it would have been better for her to have done so. But there is no rule which required her to present her present case to the court at that time. She did not in fact present it, nor seek the relief which she now seeks. If the relief now sought was such as was necessarily considered and passed upon in the former suit, her neglect to avail herself of that opportu — 524 — nity to present her full case might have precluded a further hearing upon the matter. But not only was this not the case, but there are reasons why the rights of the parties may perhaps be dealt with more advantageously to both in the present than in the former suit. If in that suit she had offered to pay only her quarter of the mortgage debt and had sought to redeem only her life interest, she would have been leaving the respondents no option but to keep their reversionary interest and pay therefor the other three-quarters of the mortgage debt. But she had no right to thus compel them to pay the three-quarters. Any tenant in common redeeming the common property by paying a general incumbrance, can not redeem merely his share of the land held in common by paying his share of the incumbrance, but he can redeem only by paying the whole encumbrance, and then, standing upon •that encumbrance, he can turn around and foreclose his co-tenants unless they will pay him their share. But his remedy is only by this proceeding of foreclosure. He has no claim which he can enforce against them personally. They have their option to pay or give up the land. This option can not be taken away. This point can be made clear by an illustration. A mortgagee of a piece of land we will suppose becomes by purchase a tenant in common with the mortgagor of the equity of redemption, each owning an undivided half. We will suppose the mortgage debt to be $2,000. If the mortgagor desires to redeem, he can not do so by tendering to the mortgagee $1,0Q0 as his half of the mortgage debt, redeeming thereby his half of the land. The mortgagee is entitled to the whole amount of his mortgage, and the mortgagor, if he desires to redeem, must pay the whole encumbrance and redeem the whole land. When he has done this he can turn around and foreclose his co-tenant, the original mortgagee, unless he will pay him his half of the mortgage debt. But why is he compelled to do this, when it would seem so much simpler and more direct for him to have redeemed at first only his own half of the equity, leaving the mortgagee, who was also his co-tenant, to keep his half of the land and cancel a corresponding half of the mortgage ? The — 525 — answer is, that by this latter course he would have been compelling his co-tenant to redeem his half of the land. This he can not do. The covenant has his option whether to redeem or let his interest as tenant in common go. No personal obligation rests upon him to redeem, or to pay any part of the mortgage debt. If the mortgagee were compelled to accept half the debt and keep half the land for the rest, it would be imposing upon him a personal obligation which does not exist. He therefore as mortgagee may demand of the mortgagor, on a redemption by the latter, the payment of the whole mortgage debt. This is his personal right. The duty afterwards of contributing towards the payment on the ground of his being also a co-tenant with the mortgagor, is a burden on the land alone, not a personal duty, and he must be left to exercise his own option as to whether he will pay the money and save his interest in the land, or refuse to pay and let his interest be foreclosed. Now it may be that the mortgagor in his bill to redeem, in the case we are supposing, might so frame his bill that the court would consider the whole question between himself and his co-tenant, and decree that he should be allowed to redeem his half interest on paying half the mortgage debt, provided that the mortgagee in his character as co-tenant would consent to such partial redemption, but that if he would not so consent the mortgagor should pay the whole mortgage debt to the mortgagee, who should thereupon, in his character as co-tenant, become foreclosed of all right to redeem his interest in the land, which should thereupon become vested in the mortgagor. Such a decree is the only one that could possibly cover the whole case. It is complex and involves a contingency, and while it might be better that a single suit in equity should settle the whole question between the co-tenants in such a case, it is very clear that the mere fact that tho mortgagor had brought merely a bill to redeem in the first instance, and had obtained a decree allowing him to redeem on paying the whole debt, would be no bar to a later bill, brought after such redemption, to compel the co-tenant to contribute or be foreclosed. The facts of the two cases would — 526 — be to a great extent the same,.except the important one of the payment alleged in the last bill of the whole mortgage debt by the mortgagor, but the relief sought in the two bills, and indeed the entire objects of the two bills, would be wholly different. One would be based upon and recognize the personal right of the mortgagee to full payment of the mortgage debt; the other would assert and be based upon the liability of the interest of the co-tenant in the land to be subjected to contribution toward the sum so paid. We therefore regard the present bill as essentially different from the former one, and in no manner precluded by it. The third point made by the respondents is, that it appears that the petitioner at. the time of the execution and delivery of the mortgage had a life estate in the land and buildings described in the mortgage, and that she was obliged by law to keep the buildings in good and sufficient repair, so as to prevent waste, and that it appears by the petition that the money for which the note and mortgage were given was used by the petitioner for making repairs on the premises so as to prevent waste, and that the money was had for her use and benefit, and that therefore she is not entitled .in equity to a contribution from the respondents on account of having paid the money. It is true that it appears that the petitioner h'ad a life estate in the premises, and that the money for which the note and mortgage were given was borrowed and used for the' purpose of making repairs upon the mortgaged premises; but it nowhere appears that any waste had been committed or suffered to take place by the petitioner, nor that the repairs were made to prevent waste; nor is it shown that the petitioner was obliged by law to keep the buildings in repair so as to prevent waste. She is not tenant in dower, but has a life estate in all the real estate of her deceased husband under his will. The finding of the committee in the former suit, which is referred to in the petition and printed with the case, is as follows on this point: — “The title to the whole of this land, including that described in the mortgage deed, was derived from her (the petitioner’s) late husband Ezra Lyon, and the remainder of all said land, subject only to the life — 527 — estate of said Matilda, upon the^ death of said Ezra descended to and vested in the said George F. Lyon, John M. Lyon, James A. Lyon, Mary W. Judd, and Sarah Lyon, children and heirs-at-law of the said Ezra, in equal proportions as tenants in common, and has never been distributed.” The estate of the petitioner was created by the act of the parties, and not by operation of law, (Town of Hamden v. Rice, 24 Conn., 356,) and whether the petitioner might or might not commit waste depends upon the terms of the will. She might have been authorized by the devise to do acts which otherwise would be waste by the statute: Rev. Statutes, p. 490, sec. 9; Town of Hamden v. Rice, supra. The will is not before us for construction, and we know nothing of its provisions except what appears from the above finding of the committee, and we cannot say that the petitioner was liable for waste. And it does not appear what was the nature of the repairs made. They might have been, and probably were, of such a character as to increase the value of the property and be of essential benefit to the reversioners; and this'we think it is fair to presume was the reason why three of them joined with the petitioner in executing the note and mortgage. None of the claims made by the respondents under their demurrer can be sustained by any principle of law or equity. The bill of the petitioner is sufficient, and there is manifest error in the judgment of the Superior Court. In this opinion the other judges concurred.