Wells v. Tucker

The opinion of the court was delivered by Rowell, J. On the facts found by the master, and on the authority of Collins v. Adams’s Executor, 53 Vt. 433, it is considered that the transaction touching the $500 note held by the oratrix, Susan L. Wells, amounted to a payment of said note by the defendant Wells, and not to a purchase thereof by the said oratrix. This leaves the said oratrix to stand for a right to redeem on her deed from the said defendant of May 1, 1881. As to the oratrix, Eleanor E. Wells, she stands on her inchoate right of homestead in the premises; and it is not denied but that this gives her á right to redeem. But the question is, May they redeem one mortgage without redeeming both? By accepting the deed from Tucker and wife, and going into possession under it, Wells assumed and agreed to pay both mortgages as a part of the purchase-money, and to save Tucker harmless and indemnified therefrom. As between Tucker and Wells, Wells thereby became primarily liable for the payment of said mortgages, and Tucker became his surety therefor, and the land became the primary fund out of which payment was to be made. It is clear, Wells failing to pay as he agreed, that Tucker could pay [227] and be subrogated in equity to the mortgage security. But this is not the only effect of Wells’s agreement. By it the two mortgages were consolidated and made one as to Wells, and all persons claiming under him, and the burden of each was annexed to, and made to rest upon, the whole land; and this, not because the lien of each was thereby actually extended over the whole laiid, but because of the contract itself, which equity takes cognizance of, and will enforce in favor of Tucker as against Wells and all persons standing-in his stead. The case of Welch v. Beers, 8 Allen, 151, is full authority for this view, and was thus: Prescott held a mortgage for $500 on a whole tract of land, and had taken possession to foreclose. After the making of said mortgage, the mortgagor conveyed a part of the tract, with an agreement recited in the deed that the grantee assumed and was to pay the whole of said mortgage as a part of the pufchase-money. Afterwards the mortgagor conveyed the remainder of the tract to the plaintiff in fee, not covenanting against said mortgage, but with an express understanding that it was to be paid in full by the prior purchaser. Prescott subsequently took a new mortgage of the first part for $1,200, with full knowledge of said agreement, and the value of that part was more than enough to pay the $500 mortgage; Held, that the plaintiff’s part of the land was exempt from said last-mentioned mortgage, not because his deed of warranty left the whole burden of it to rest upon the other part, but because said agreement expressly annexed it to such part before the plaintiff purchased. This is very analogous to the rule in equity, that when land subject to mortgage is sold by the mortgagor in separate parcels to different purchasers without an assumption by them of any part of the mortgage debt, and the deeds are duly recorded, or actual notice is had of the s"tate of the title and the subsisting equities, the purchasers, as between [228] themselves, are charged and must contribute in the inverse order of the time of their purchases. This rule rests upon the ground that when a mortgagor sells a part of the mortgaged premises without reference to the incumbrance, it is right as between him and the purchaser that the part still held by him should be first applied to the payment of the debt, and so equity charges it with such payment. But this is not, as said in Welch v. Beers, because a deed of warranty of part, of itself, directly creates a lien on the remainder for the whole amount of the mortgage, but because equity recognizes the mortgagor’s contract as binding on subsequent purchasers who take with notice thereof. So here, it is right, as between Tucker and Wells, that Wells should pay both mortgages before holding any part of the farm free from either; and a court of equity would not aid him as against Tucker, to redeem one of them only, and thus enable him to hold an undivided half of the farm free from both, for this would be contrary to the spirit of his agreement, and he who seeks equity must do equity. And the complainants have no better right than Wells himself had, for they sit in his seat. There is no other question in the case material to be considered, unless it be whether Wells was a competent witness; and we think he was not. As between him and his wife, she is the substantial party, and in testifying, he would testify for her and not for himself. The law of the subject is fully considered in Simkins & Wife v. Eddie, 56 Vt. 612. Decree affirmed and case remanded.