Devereaux v. Fairbanks

The opinion of the court was delivered by Powers, J. The Mower mortgage described in the petition was executed before the Homestead Act took effect. As against such mortgages, no homestead exemption can exist. The petitioners, as attaching creditors and mortgagees of the premises encumbered by the Mower mortgage and subject to the homestead right of the defendant, have paid the Mower mortgage, and taken a transfer of it and the debt secured by it to themselves, and now claim to enforce the full amount of the debt against the homestead. As attaching creditors, they could not reach that parcel of the premises constituting the defendant’s homestead ; they could only get the defendant’s interest in the residue. As mortgagees, they got no title to the homestead parcel, because the defendant’s sole deed would convey none ; but his deed would convey his interest in the residue. Their lien as levying creditors, and their lien as mortgagees, is limited to the residue, and in either capacity, they take the residue cum onere — they take the defendant’s interest in it as they find it, burdened with the outstanding Mower mortgage ; they stand in the defendant’s shoes as to the residue. As between the petitioners and the defendant, each owns a parcel of land upon which rests a common burden. In equity, each parcel must contribute ratably to its discharge. The petitioners did not buy the Mower mortgage as volunteer purchasers, but paid it in virtue of their privity to the estate upon which it rested, and to save their interest. Their estate was obligated to pay its equitable share of the debt, and to that extent they paid what they were bound and ought to pay. In addition to that, they paid what the homesteader was bound and ought to pay, and the latter sum may be charged upon the homestead. If the argument is sound that the petitioners are to be treated as volunteers buying the Mower mortgage for value, the rule is the same. They seek to enforce it against the defendant’s share of the common property. He may interpose the objection that their [704] share should contribute with his to pay the debt, and such contribution would be ordered, and the decree would be limited to the same ratable share as before. The whole Mower debt cannot, in equity, be charged upon the homestead parcel, because it does not, in equity, wholly rest upon that parcel. The petitioners should and do get the defendant’s interest in the residue, under the rule we adopt. They should not get more. They cannot reach the homestead because it happens that the defendant has not fully paid for the residue. They can no more compel, the homesteader to give them an indefeasible title to the residue, than can the homesteader compel them, under like circumstances, to give him such title to the homestead parcel. This case is identical in principle with Lamb v. Mason, ante, 345, and must be decided upon the same grounds. The decree of the Court of Chancery is reversed, and cause remanded for decree in accordance with the views above expressed.