Deavitt v. Judevine

The opinion of the court was delivered by Powers, J. The rule is well settled in this State that in case of successive conveyances of parcels of land incumbered by a common mortgage, the parcels should be held to the duty of redemption in the inverse order of their dates. Lyman v. Lyman, 32 Vt. 79; Root v. Collins, 34 Vt. 173. No confusion will arise in the application of this rule to the case at bar, if the order of events be carefully noted. E. M. Gifford on September 17, 1864, owned lot 59, on the whole of which rested the Davis mortgage, which he had assumed to pay. On that day Gifford sold the west half of lot 29 to Gilchrist by warranty deed and received his pay in full.. The effect of • this severance of the lot and conveyance to Gilchrist was as between Gilchrist and Gifford to shift the burden of the Davis mortgage wholly from the west half to the east half which Gifford retained. Had the Davis mortgage been foreclosed in this postui’e of the title, Gifford’s east half would first respond and the west half would be called on only in case the east did not make good the debt. This equity that compels the half lot retained by Gifford when he conveyed the west half to Gilchrist to first respond to the Davis mortgage arises at the time of the severance of the land and by virtue of the severance. It was the primary duty of Gifford to pay Davis. This duty remained when he con-, veyed the west half to Gilchrist. Gifford gave Gilchrist a warranty deed which of itself was equivalent between the parties to a discharge of the Davis mortgage from the west half. [701] November 23, 1865, Gifford conveyed by warranty deed the east half to Plummer and Robbins, the title to which has since come to the orator’s intestate. When Plummer and Robbins bought the east half of Gifford, they obtained Gifford’s title to that half precisely as Gifford held it. The record showed them the Davis mortgage on the whole lot' and the conveyance by warranty deed of the west half by Gifford to Gilchrist. Hence, they bought with notice of the actual state of the title and were bound to know the law of contribution as between the east and west halves. The order in which redemption from the burden of the common mortgage is decreed, being fixed by the dates of the several conveyances, will continue attached to the several parcels in the hands of successive grantees. The rule is not varied in this case by the fact that in April, 1866, Gilchrist mortgaged the west half to Gifford to secure a loan of money. This mortgage had no relation to Gifford’s deed to Gilchrist. It was an independent transaction. The west half retained its equitable exemption from the burden of the Davis mortgage precisely as it would had this mortgage run to a person who was an entire stranger to the title. Judevine’s title then to the west half is protected to the same extent as it was in the hands of Gilchrist. The collateral security held by Judevine is not material. He took this to make good Gifford’s covenants of warranty in Gifford’s deed to him, and in a conveyance to which the orator’s grantors were in no sense privies. The decree below is affirmed, and the cause remanded.