Woodruff v. Mutschler

The Chancellor. The bill is filed to annul the cancellation of a mortgage on land in Newark, and to re-instate and foreclose the mortgage. The case, briefly stated, is this: The defendant, Henry Osborn, being then the owner of the mortgaged premises, gave the mortgage to Margaretha Mack on the 29th of October, 1869. At the death of the mortgagee the mortgage was a valid, subsisting security, and there were due on it $1,100 of principal, besides $72.50, or thereabouts, of interest. After her death, 36 Osborn sold the property to Mutschler for $1,200, stipulating to convey it to him free from the mortgage. Before the delivery of the deed from the former to the latter, Mutschler paid Osborn the price agreed upon, which was divided among the next of kiu of the mortgagee, by one of whom the mortgage was produced, and delivered over for cancellation. It was subsequently canceled, and cancellation entered of record. The deed to Mutschler is dated September 23d, 1879. The mortgage ap 37 pears to have been canceled of record on the 29th of that month. Mrs. Mack died intestate, and no letters of administration had, when the mortgage was canceled, been issued upon her estate. Mutschler knew her in her lifetime. He knew when he paid •the money that she had died, and that the mortgage was held by her at her death, and was a valid security, and he is presumed to have known that the cancellation of it was not by, or by authority ■or consent of her legal representative. Mrs. Mack left no personal property of any' value except the mortgage. All she had 38 was a little household furniture, worth not more than $50, which was soon after her death divided up among her children. She died in September, 1877. One of the creditors of the estate took out letters of administration upon it in October, 1879. That the cancellation was unauthorized, there is no room to-doubt. The next of kin had no authority to discharge the mortgage debt. They had none to cancel the mortgage. Wms. on Exrs. 504; Hatch v. Proctor, 102 Mass. 351; Foster v. Bates, 12 M. & W. 226. Mutschler, by his answer, alleges that he bought the property free from the mortgage, and that when it was conveyed to him, the mortgage had been canceled. But he admits, in his testimony, that he knew that Mrs. Mack held the mortgage at her death, and it appears from his testimony that he knew that it was the money paid by him for the considei’ation of the conveyance which the next of kin received in consideration of the cancellation of the mortgage. He must be held to have known that the land was not freed from the mortgage by the cancellation. He was bound to see that the cancellation on which he relied was made by due authority. The cancellation will be annulled, and the mortgage re-instated, and there will be a decree for the foreclosure and sale of the premises. But the heirs may, under some circumstances, assign a mortgage, Babbitt y. Bowen, S3 Vt. 437. See Moore v. Comrs., 54 Ind. 534; Lewis v. Lyons, 13 IlL 117; Patterson v. Allen, 50 Tex. 33. An executor cannot assign the legal estate in lands mortgaged to his testator, unless the land is devised to him; such assignment will only transfer the mortgage, Doe v. Hansen, 3 Allen (JV. B.) 437; Watson v. Hawkins, 60‘ Mo. 550 ; Bobinson v. Byers, 9 Grant’s Oh. 573. 'An administrator may enforce a vendor’s lien on lands sold by him, Bratty. Bratl,81 Md.578; Barwiekv. While,3Del. Oh. 384; Whitey.Beviere, 57 Ga. 386. Tlie personal representatives of a mortgagee are the proper parties to foreclose it, and not his heirs or devisees, Frealcc v. Horseley, Ereem. 180 ; Anon. Id. 53; Bradshaw v. Outram, 13 Ves. 834; Snarely v. Pickle, 89 Qratt. 37; Harrison v. Harrison, 1 Call 419; Grattan v. Wiggins, 83 Oal. 16; Copper v. Wells, Sax. 10; Demarest v. Wynkoop, 3 Johns. Ch. 145; Pierce v. Brown, 34 Vt. 165; Clerkson v. Bowyer, 8 Vern. 66; Gibson v. Bailey, 9 N. H. 168 ;■ Johnson v. Bartlett, 17 Pick. 477; Sheldon v. Smith, 97 ilfass. 34; Merrin v. Lewis, 90 111. 505; Griffin v. Lovell, 4'3 Miss. 403; Fifield v. Sperry, 80 JV. H 338; Dayton v. Dayton, 7 Bradwell 136; Booth v. Smith, 5 Conn. 133, 140, note; Jones on Mori. \ 1387; see Pierce v. Jaquith, 48 N. H. 831; Felch v. Hooper, 30 Me. 159 ; Mclver v. Cherry, 8 Humph. 713; Walker v. Sehreiver, 47 Iowa 589 ; Mebane v. Mebane, 80 N. C. 34; or the administrator de bonis non of such executor, Galfield v. Hanson, 57 How. Pr. 331; Utterbacic v. Cooper, 38 Grail. 333; Kirby v. Stale, 51 Md. 383 ; see Abingdon v. Tyler, 6 Coldw. 503 ; Fletcher v. Sanders, 7 Dana 345; Barwick y. White, 3 Del. Ch. 384-Bo, he may revive a foreclosure, although the foreclosure was obtained by tire mortgagee as trustee of a third person, Biley v. McCord, 81 Mo. 885, 84 Mo. 365; see Lockwood, y. Tracy, 4Q Conn. 447; Van Billiard v. Nace,l Grant’s Cas. 333; Atehison v. Surguine, 1 Terg. 400. Although the mortgagee may have entered for condition broken, Devey v. Van Deusen, 4 Bick. 19. So, where the decedent conveys to a creditor in trust to satisfy his debt and pay* tlie surplus to the decedent, Craig v. Jennings, 31 Ohio St. 84; see Williamson v. Wickersham, 3 Coldw. 53; or bequeaths the mortgage, Gibbes v. Holmes, 10 Bich. Eq. 484- As to an executor’s sale of the land mortgaged, after foreclosure and purchase by the executor, see Foster v. Huntington, 5 H. H. 108 ; Baldwin v. Timmins, 8 Gray 801; Wilson v. Stoats, 6 Stew. Fig. 524. Where there is no executor, a creditor of a deceased mortgagee may foreclose, Willis v. Farley, 24 Cal. 490; Randolph v. Chapman, 21 La. Ann. 486. On foreclosure by a first mortgagee, the heir of a deceased second mortgagee is not a necessary party, Whitla v. Halliday, 4 Dr. & War. 267; German Sav. Bank v. Muller (N. Y.), 9 Reporter 622; Beebe v. Morris, 56 Ala. 525; nor the representative of a deceased prior encumbrancer, on foreclosure of a subsequent mortgage, Walker v. Jarvis, 16 Wis. 28. So, where a mechanics’ lien, prior to the mortgage, is being enforced, Shields v. Keys, 24 Iowa 298; see Milam v. Brujfee, 6 Mo. 685. One executor may foreclose against a delinquent co-executor, Rathbone v. Lyman, 8 R. I. 155. As to the forms in pleading by an executor, see Moir v. Dodson, 14 Wis. 279; ■and the ownership of the mortgaged premises after foreclosure, Fifield v. Sperry, 20 N. H. 338. Whether a foreign representative may foreclose here without talcing out letters, see Porter v. Trail, 3 Stew. Eg. 106; Averill v. Taylor, 5 How. Pr. 416 ; Whart. Oonfl. of Laws {2d ed.) § 626 ; Vroom v. Van Horne, 10 Paige 549; Young v. Brush, 28 N. Y. 667; Chamberlin v. Wilson, 45 Iowa 149 ; McClure v. Bates, 12 Iowa 77; Lucas v. Byrne, 35 Mcl. 485; Jones on Mort. § 1389. A probate court has no authority to order an executor, on the receipt of money loaned, to reconvey real estate conveyed to his testator by deed absolute on its face, but intended as a mere security, Anderson v. Fisk, 41 Cal. 308. If the mortgage be redeemed, the heir alone is competent to reconvey, ■Clarkson v. Bowyer, 2 Vern. 66; Wood v. Williams, 4 Madd. 186; Scott v. Nicholl, 3 Russ. 476; Silvester v. Jarman, 10 Price 78; Osborne v. Tunis, 1 Dutch. 633 ; Huggins v. Hall, 10 Ala. 283; see Griffin v. Lovell, 42 Miss. 402; Hilton v. Lothrop, 46 Me. 297;. ICinna v. Smith, 2 Gr. Ch. 17; Merriam v. Barton, 14 Vt. 501. For proceedings under the English statutes, where the heir is unknown &c., see MeyricPs Case, 9 Hare 116 ; Boden’s Case, 1 De G. M. & G. 57; Quinlan’s Case, 9 Irish Ch. 306; Hodged Case, 1 Grant’s Ch. 285.—Rep.