Sanford v. Hill

Pardee, J. In 1870 Maria Bouton mortgaged a certain tract of land, with other lands, to the Norwalk Savings Society to secure the payment of $10,000; in 1871 she conveyed a portion of this tract, which we will designate as lot B, to E. J. Hill, by a deed warranting it to be free and clear from all incumbrances, which deed was immediately recorded in the town records. When he received it he made a parol [52] agreement with the grantor1 that he would pay $300 upon the mortgage indebtedness to the savings bank as part consideration for his purchase. In 1873 he conveyed his interest in the lot to Hubbell & Tolies, by a quit-claim deed, in which • there was no mention of any mortgage upon it, which deed was duly recorded. They entered into a parol agreement with Hill to pay the $300 to the bank; neither Hill nor Hubbell & Tolies have ever paid this money, and the last two were adjudged bankrupts in 1875, and John H. Smith was appointed their assignee. In 1873 Maria Bouton conveyed' a portion of the tract originally mortgaged to the bank, which we will designate as lot 0, to Delia A. Sanford, the petitioner, by a quit-claim deed. Maria Bouton, by giving a deed of warranty of B to E. J. Hill, so far forth as they and any subsequent purchasers of O are concerned, freed B from the burden of the mortgage and placed it upon 0; this last lot, upon foreclosure by the bank, must have paid the whole debt if of sufficient value; Hill, by recording his deed, gave notice to all persons of the precise nature and extent of her right to and interest in O; under such notice Mrs. Sanford took precisely that right and no greater, presumably taking the fact disclosed by the notice into consideration in establishing the price; Hill’s rights in and to B having been previously fixed by the record of his deed are not to be diminished or affected by the subsequent conveyance-of 0. Ebonezer Hill, having purchased of the savings bank the Bouton note and mortgage, brought in December, 1875, a petition for foreclosure, making the present petitioner, Mrs. Sanford, and Smith as assignee of Hubbell & Tolies, respondents; the court passed a decree foreclosing Mrs. Sanford unless she paid the debt' on or before April 3d, 1876, and Smith unless he paid on or before April 10th. Mrs. Sanford paid to Ebenezer Hill the whole amount duo upon the mortgage, and received from him the note, together with a conveyance of his interest in B and O; and she has brought this present petition to compel David Hill to contribute towards [53] the sum thus paid such proportion as lot B bears in value to lots B and C. The court below found that proportion to be $282.50, and decreed that he should pay that sum. The verbal promise to pay $300 on the mortgage debt made by E. J. Hill to Maria Bouton was accepted by the latter as part of the price of the land; this promise was made known to Hubbell & Tolies, who verbally promised E. J. Hill that they would pay this sum. The recorded deeds contain no reference to this agreement, and the case finds that David Hill had no knowledge of it until after he had taken his deed. He is a boná-fide purchaser for full value without notice. He is, of course, to be charged with notice that the mortgage covered lot B, but the extent of that notice is, that B is chargeable in equity only after C is exhausted; his ignorance of the private parol agreement releases him from any equitable duty in reference to it; that agreement being private and unrecorded the effect of it ceases exactly when actual knowledge of it ends. The rule which imposes the burden primarily upon lot C, in the inverse order of conveyance by Mrs. Bouton, is a logical result of our recording system and has a firm foundation in equity; moreover, it is the prevailing rule in this country and in England. In Clowes v. Dickinson, 5 Johns. Ch., 240, Chancellor Kent referred to Harbert’s case, 3 Coke, 11, where it was resolved that if a man be seized of three acres and acknowledge a recognizance or statute, and enfeoff A of one acre and B of another, and the third acre descends to the heir, and execution be sued out against the heir, he shall not have contribution against the purchasers, “ for the heir sits in the seat of the ancestor;” and the chancellor adds, in reference to successive purchasers of different portions of incumbered property, that they too may be said to sit in the seat of their grantors. The rule has received judicial sanction in the following cases:—James v. Hubbard, 1 Paige, 234; Jenkins v. Freyer, 4 id., 53; Guion v. Knapp, 6 id., 35; Patty v. Pease, 8 id., 277; Skeel v. Sproker, id., 182; Lyman v. Lyman, 32 Verm., 79; Shannon v. Marselis, 1 Saxton, 413; Wickoff v. Davis, 3 Green Ch., 224; Hinkle [54] v. Altstadt, 4 Gratt., 284; Jones v. Myrick, 8 id., 179; Brown v. Simons, 44 N. Hamp., 475; Holden v. Pike, 24 Maine, 427; Shepherds v. Adams, 32 id., 63; Wallace v. Stevens, 64 id., 225; Chase v. Woodbury, 6 Cush., 143; Cooper v. Bigley, 13 Mich., 463. In Kentucky (Dickey v. Thompson, 8 B. Monroe, 312,) and in Iowa (Bates v. Ruddick, 2 Clark, 423,) the rule of equality of contribution among all the purchasers of the mortgaged premises, contended for by the petitioners, is applied; but we think that the weight of judicial opinion is as we have before indicated. The petitioners urge that, inasmuch as David Hill took his deed of lot B from Smith, assignee of Hubbell & Tolies, on a day subsequent to the bringing of the petition for foreclosure by Ebenezer Hill, the purchaser of the note and mortgage from the bank, and as Mrs. Sanford’s claim for contribution against lot B arises from the fact that the decree upon that petition compelled her to pay the whole debt first in order of time, she now has the same right against David Hill that she would have had against Smith, assignee, his grantor. But the doctrine of lis pendens, that the purchaser of property the title to which is then the subject matter of judicial investigation, is held to have notice of the existing suit and is to be bound by the future judgment or decree therein, does not assist the petitioners. The pending litigation was the petition for foreclosure by Ebenezer Hill, the owner of the original note and mortgage, enforcing the rights held by the bank under that mortgage. Under that, and as between the bank on the one side and Mrs. Sanford and David Hill, subsequent purchasers of lots covered by the mortgage, on' the other, the bank, or its assignee, Ebenezer Hill, had the right to receive the amount of the debt from lot C or from both B and C; and the court simply enforced the equities existing between the last named parties, by placing the whole burden primarily upon lot C. But it was neither the prayer of the petition, nor the issue of the pleadings, nor the scope of the decree, to determine that lot B was liable to contribute to the payment of the mortgage. That question was first [55] raised in this proceeding, and remains unaffected by any previous litigation. There is error in the judgment complained of. In this opinion the other judges concurred.