Sprague v. Rockwell

[406] The opinion of the court was deliv^ed by Barrett, J. The two cases were argued as one case, and only copy of one answer was presented. That answer denies the indebtedness of Rockwell to Sprague, to secure which said mortgages were assigned, as alleged in the petition; but it is proved. It denies the alleged assignment to Sprague ; but that is proved. It claims that if assigned, such assignment was of no effect as against the subsequent attachment of the answering defendants, for the reason that the assignment was not recorded; but recording is not necessary in order to render such assignment effectual. Pratt v. Bank of Bennington, 10 Vt. 293. The answer claims that the deed of the assignee in bankruptcy and of Munger and wife to Rockwell, paid off the original mortgage debts, and thereby Rockwell held an absolute and unincumbered title in fee. But those deeds were made after Rockwell’s assignment to Sprague, and, of course, did not affect Sprague’s title and rights under the assignment. As to the point made on what is said in the petition about Rockwell having become the owner in fee, that is shown by what is otherwise stated, to be intended to mean that he had become such owner subject to the rights of Sprague as assignee of the mortgages held by him; and the purpose of the statement was to show that Rockw.ell had an interest that rendered him a proper party defendant, and not to set out precisely and explicitly what his interest was, or as having an interest that affected the ground of right in Sprague to enforce the mortgages against all interested parties. What is stated in the petition is tantamount, when taken together, to the representation that Rockwell had come to owii in the right and character of the mortgagor in the assigned mortgages. The answer puts the claim and right of the defendants solely on the effect of their attachment in the suit against Rockwell. That could be operative against Sprague only in virtue of some right in Rockwell as against Sprague. But the only right of Rockwell in that respect is that of redeeming the mortgages assigned by him to Sprague. No fraud is alleged or shown as between Sprague and Rockwell, of any kind, and so, of course, [407] Rockwell’s creditors can have no right against Sprague that Rockwell himself would not have. The petition avers and the answer does not deny, and the proof shows, that Hunger did not pay the mortgage note to Walker, and that Rockwell did. This would effectuate Rockwell’s right as mortgagee to the security created by the mortgage, and such right would be the subject of valid assignment, vesting the same right in the assignee. It will be assumed, on what is stated in the petition, undenied in the answer and maintained by the evidence, that Rockwell paid the Walker note upon the compulsion exerted upon him by his liability as endorser, and not as an outside volunteer. This meets the argument in that respect presented by one of the briefs for the defendants. The criticism in the nature of a demurrer ore terms in the Supreme Court (not shown to have been made in the Court of Chancery), that Sprague’s title is not sufficiently shown in the petitions, because the consideration for the assignment is not set forth with fulness and detail, is answered by saying that the statute providing for foreclosure by such petition does not require or contemplate such fulness and particularity as is requisite in an English' bill in equity. On the contrary, the design of the short mode was, to avoid the requirement for such fulness and particularity; and it is consistent with that design to hold, that a general and comprehensive statement of ultimate facts, as constituting the ground of right and liability, would be sufficient in that respect. So, the statement in one of the petitions of the assignment of the note and mortgage to Sprague, and the delivery of them to him, and “that said note and mortgage ever since have been, and now are, the property of the petitioner, . . . and that he is the holder, owner, and bearer of said note,” is regarded to be a sufficient statement of title in that respect, to present it as the subject of question and litigation upon the answer and proofs. As indicating tolerated vagueness and informality in these petitions, I have in mind several cases that have gone through long processes of sharp litigation, and final decision in the Supreme Court, that, if instituted by English bill, would have gone out on demurrer. As a specimen, I refer to Babbitt v. Bowen, 32 Vt. 437, in which, before me as Chancellor, this subject was [408] made prominent for consideration, and, as I infer from the report of the case, was brought to the consideration of the Supreme Court. What is thus said is not to be regarded as commending either of the petitions as specimens of creditable legal drafting, even under the statute authorizing the short mode. Proper drafting would have avoided occasion for several grounds on which question and criticism have been made in the answer and argument, and would have relieved the court from the work of meeting such question and criticism, as has been done above. It is a legitimate quality of legal drafting that it should not give occasion for debate on the score of insufficiency or informality. Decrees affirmed, and mandate accordingly.