Brooks v. Benham

Baldwin, J. He who takes a mortgage of several parcels of land, which together are worth more than the amount of his debt, and are subsequently sold by the owner of the equity of redemption, at the same time, to different persons, owes a [97] certain duty to each of these. He ought not to release his security as to, any parcel in such a manner as to increase the burden on the rest. He has no right, without the consent of all, to bargain with any of these purchasers for the release of his parcel, on payment of less than its fair share of the whole debt. While the whole of the debt is secured by the whole of the land, each parcel of the land, as between the different proprietors, is equitably subject only to so much of the debt as corresponds to the proportion between its value and the value of all the land; and if its owner should be compelled to redeem the mortgage, he can resort to the others for a ratable contribution, and for that purpose is entitled to the benefit of subrogation to the mortgage title. To release any particular parcel from the mortgage incumbrance is to make, as respects that, any such subrogation impossible. The mortgagee therefore releases at his peril, if he had notice of the conveyances out of which the equities in question arise; and if he does so without receiving from the releasee his proper contributory share of the debt, he is still equitably chargeable with the receipt of that share, in favor of the owners of the remaining parcels. Stevens v. Cooper, 1 Johns. Ch. 425. It was this position which the plaintiff occupied with relation to the defendants, and the decree appealed from correctly enforces their resulting equities. It was properly held by the Superior Court that what was said and done at the auction sale did not constitute an apportionment of the mortgage incumbrances. An oral offer was made to let certain sums “ remain” on each parcel sold; but such offers amounted to nothing unless accepted, and then could only be made effectual by future conveyances between the parties. It appears that no offer was accepted at the time of the sale, nor, in view of the statute of frauds, would such an acceptance have created an actionable obligation. The dealings of the plaintiff with certain of the purchasers after the sale, and the resulting conveyances, constituted an apportionment as between him and them; but could not operate to the prejudice of the defendants, who were not consulted and gave no consent. [98] The defendants claim that the plaintiff’s release of certain of the lots, upon payment of part of the mortgage debt, was equivalent to a foreclosure, and therefore paid the whole debt. The ancient law of this State was that when a strict foreclosure became absolute, this appropriation of the land extinguished the obligation of the mortgagor, and under our present statutes a similar result may now follow, under certain conditions. Ansonia Bank's Appeal, 58 Conn. 257. But these statutes deal only with judicial foreclosures. Such proceedings afford an opportunity to settle all matters of controversy growing out of the mortgage indebtedness, and it is only when the plaintiff does not choose to avail himself of this opportunity that he is debarred from any further recovery in subsequent proceedings. Transactions between the mortgagor and mortgagee out of court, are left to be regulated by the common law and the general principles of equity. Under these a mortgage debt is never satisfied by the mere acceptance of a conveyance of the equity of redemption as to part of the security. The acceptance by the plaintiff, in February, 1894, of conveyances of the equities of redemption in five of the lots sold by the trustee in insolvency extinguished the lien of the mortgage upon them, and they were properly charged against him by the Superior Court, in stating the account between him and the defendants, at $1,800, which was their market value, although that exceeded their ratable contributory share of the total indebtedness then existing. His agreement, made six months later, to sell them for what he had promised should “ remain” upon them, amounting in all to $1,100, cannot affect the fact that he had previously discharged them from the mortgage lien, and appropriated them fully to Iris own use, without obtaining the defendant’s consent. There is no error in the judgment appealed from. In this opinion the other judges concurred. At the opening of the next term of this court (January [99] term, 1898), an oral motion was made by counsel for the appellants for an order directing the Superior Court to enlarge the time limited for redemption in its original decree of foreclosure, which time expired pending the appeal, and before the judgment of this court was announced. John O'Neill, for the motion, stated that the clerk of the Superior Court had issued an execution of ejectment upon the original decree, and that he had submitted to the Superior Court a motion for its recall, which was pending undecided. jFrederick M. Peasley, for the plaintiff, urged that the defendants should have tendered the sum found due, or paid it into court, before the law day expired. 'Per Curiam. The Superior Court has jurisdiction to modify its judgment, in respect to the limit of time fixed for redemption, and to the stay of execution. This court cannot assume, upon this motion, to control the exercise of such jurisdiction.