Hart v. Chase

Carpenter, J. The petitioner’s testator, Riley Rexford, made two mortgages of his property to secure certain notes on which he was liable as maker. Subsequently the whole equity of redemption was set off on an execution against him to Mary A. Hamlin, who afterwards conveyed her interest thus acquired to the wife of Rexford. Mrs. Rexford subsequently died' intestate, leaving the respondents her heirs at law. Mr. Rexford remained in possession of the property for several years and was then called upon to pay, and did pay, the mortgage debts. This petition is brought to foreclose the equity of redemption. We suppose it to be true, indeed it seems to be practically conceded, that the result of these various transactions was in effect to put Mr. Rexford in the place of the mortgagees, and in equity to make the respondents the debtors as between themselves and Rexford. The respondents’ objections rest upon entirely different grounds. The principal one is that the payment by Rexford constituted in law an advancement. Whether an advancement or not is a question of intention. The court below finds in the alternative, thus: “ If from the [212] payment on said notes it is a conclusive presumption of law that said Rexford intended an advancement to his children, then such advancement is proved. But if the law does not raise such conclusive presumption, then the object of said Rexford in paying said notes is found to have been, not an advancement to his children, but his own personal benefit.” The latter must stand as the true finding. In that the court correctly treated it mainly as a question of fact, and gathered the situation from the circumstances. Even if we were to consider this record as presenting for our consideration the question whether, upon the facts stated, there was or was not an advancement, we should unhesitatingly come to the same conclusion. The circumstances pretty effectually repel the presumption of an advancement. At the very threshold of the inquiry we find that the payment was an involuntary one. Advancements are ordinarily, if not always, voluntary. And when a man makes a payment in 1’esponse to a legal demand and in discharge of a legal obligation, it is a little difficult to extract from such payment any evidence of an intention to make an advancement. Couple with this the facts that he made no note, charge or other memorandum of the payment, and did not at the time or at any other time declare it to be an advancement, but on the contrary carefully preserved the notes and mortgages among his valuable papers, and the conclusion would seem to be a reasonable one that he did not intend an advancement. At least no legal principles will justify us in saying that the circumstances afforded a conclusive presumption that he intended an advancement. The respondents claim that there should be a deduction from the amount found due on account of rents and profits and waste. It is not contended that Rexford was liable for rents or for waste while in possession of the property as mortgagor, or while holding the equity of redemption in right of his wife merely, whether before or after her death. But it is claimed that after he paid the mortgage debts he was in possession of the premises as mortgagee, and that as such he was liable for [213] rents, etc. This claim assumes of course that his interest as tenant by the curtesy then ceased. We do not accede to that view of the case. As tenant by the curtesy of the equity of redemption he had a good title against every one but the mortgagee. The mortgagee could extinguish that title by a foreclosure. After Rexford paid the mortgage debt and stood in the place of the mortgagee he might still retain his title as tenant by the curtesy. The mortgage still subsisted as a valid security. There was therefore the interest of a mortgagee in the property which Rexford held, and there was an equity of redemption, which in this case was owned by the respondents subject to the life estate in Rexford. That life estate however was distinguishable from his interest under the mortgage. It was not for his interest to extinguish the life estate, and, in the absence of any proof to that effect, the law will not presume that he did so. We must therefore regard Rexford as in possession of the property as tenant by the curtesy. As such he certainly was not liable for rents, and if waste was committed we are aware of no principle which would compel him to account for the same as mortgagee, whatever may have been his liability as life tenant. We advise the Superior Court that the petitioner is entitled to a decree for the full amount. In this opinion the other judges concurred.