Willson v. Burton

The opinion of the court was delivered by Redfield, J. N. H. Armington was the owner of a life estate jointly with his wife, in a house and lot in St. Albans village, subject to a mortgage owned by Edson & Rand. The remainder and inheritance was vested in the two sons of N. H. Armington, Russell and Henry. Russell mortgaged his moiety of the inheritance to the defendant Burton. Subsequently N. H. Armington purchased of Henry’s assignee in bankruptcy Henry’s moiety of the inheritance. Subsequently N. H. Armington (being the owner of one undivided half of the premises in fee, subject to the mortgage of Bdson & Rand, which was a common burden upon the whole premises) mortgaged that undivided share to Albert Sowles, and the petitioner has become the owner of that mortgage. The defendant Burton purchased and took a quit-claim deed from N. H. Armington of his interest in the whole premises, and thereby became the owner of the equity of redemption of the whole premises and the reversionary interest of the said Henry. At the time the latter deed was delivered, Burton executed a written agreement promising to pay the incumbrances on said estate, or part of them. The exact tenor of the writing is left by the evidence in dispute. After the death of N. H. Armington, by an arrangement between Burton and Russell Armington, this written agreement was given up and cancelled, and a new agreement of different tenor substituted in its place. Soon after this Burton [399] gave Sowles, who then owned this mortgage, a written agreement that he would pay this mortgage, with the condition that Sowles should present the notes secured thereby to the commissioners on N. H. Armington’s estate for allowance. Sowles did present said notes to said commissioners for allowance, which was resisted by the administrator of N. H. Armington’s estate, on the ground that Burton had agreed with the intestate, upon sufficient consideration, expressly, to assume and pay those notes ; and the notes were disallowed by the commissioners. The consideration for this quit-claim deed was $50, a mere nominal consideration; the value of the estate, $3,000, or more. The nominal consideration paid shows that Burton paid its value, less the incumbrances, or less some other large sum. By the operation of said deed the right in equity of redeeming the Sowles mortgage was vested in Burton, and the life estate of N. H. Armington in the whole estate. Without any special agreement that Burton assumed the payment of the Edson & Rand mortgage, I think he would have the right in equity to keep said mortgage on foot, after he had been compelled to pay it to save his own securities, for the purpose of apportioning the burden equitably among the owners and interests in the premises. This brings us to consider the agreement or understanding of the parties at the time of the delivery of the deed from N. H. Armington to Burton. It is admitted that there was a written contract, and as the consideration moved from N. H. Armington, it must be held, as it was contemporaneous and touching the subject-matter of the deed, to have been executed for his benefit, though it may have been delivered to Russell. And it would not be competent for Burton and Russell to cancel such contract and substitute another in its place, without the consent of the party for whose benefit it was made, or to the prejudice of the subsisting rights of others. By the new and substituted contract of January 8, 1878, Burton agrees with Russell to give Russell one half the avails of the premises over and above the Edson & Rand mortgage; and it is evident from this contract, and all the evidence that Burton, at least, did assume the Edson & Rand mortgage. If so, it was extinct when paid; and he had no right or ca [400] pacity to waive it and keep it on foot for any purpose. But we are satisfied from the evidence that Burton expressly agreed in writing, upon a new and sufficient consideration, to pay both mortgages. If, therefore, the estate of N. H. Armington should be compelled to pay the Sowles notes, it could in equity compel Burton to reimburse the money paid, or surrender the land ; but in equity no such circuity of proceedings is allowed. Judgment affirmed, and cause remanded.