Gray v. Hattersley

Pitney, V. C. The defendant Mrs. Bissett contends that the Trenton house and lot devised to her brother, the defendant Thomas -S. Hattersley, should be first sold to pay the amount due on complainant’s mortgage, and the Middlesex county property conveyed to her by her father, the mortgagor, should be held liable for no more than the deficiency arising after such sale. The defendant Thomas, on the other hand, contends that the two several parcels should bear the burden of the mortgage ratably, in proportion to their respective values to be determined by their sale under execution. Mrs. Bissett rests her claim on two grounds—-first, that the conveyance to her was with full covenants of warranty; second, [211] dhat the mortgagor by his will cast upon Thomas the burden of paying complainant’s mortgage, and that Thomas has accepted the devise. Thomas answers to the first position that the conveyance to Alice, although by warranty, was without moneyed consideration and was made expressly subject to the encumbrance whereby it was subject to its proportionate share of the mortgage; and, to the second position, that it was his father’s will that he should have both the parcels mortgaged, from and out of which to pay the mortgage debt, and that his father has not said or declared it to be his last will that he (Thomas) should pay it out of a portion only of the mortgaged premises, and that Alice, as grantee of a portion of the mortgaged premises, cannot be permitted to claim the benefit of the charge in question against the other portion. The general rule that where the mortgagor or his grantee has conveyed away a portion or successive portions of the mortgaged premises, and the mortgagee forecloses, the several portions are to be held liable and sold in the inverse order of their conveyance is beyond question. It is based upon the intention of the parties, either expressed in the writings passing between them or implied from the facts and circumstances of the case. An unlimited covenant of warranty or against encumbrances contained in the first conveyance manifests an intention that the grantee shall have the land conveyed free front encumbrance, although a nominal consideration only be paid. Gaskill v. Sine, 2 Beas. 400 (at p. 402); Harrison v. Guerin, 12 C. E. Gr. 219 (at p. 222). So a conveyance of the land itself, as distinguished from the mere right, title and interest of the grantor, for a consideration representing the full value of the part sold, would seem to have the same effect. Woolbert v. Lucas, 10 Barr. 73; Cooper v. Bigley, 13 Mich. 474. The grantor of such a conveyance would seem to be devoid of any equity to call upon his grantee to contribute toward the payment of the mortgage. And that seems to me to be the test, namely, can the grantor of a portion of the premises which are subject to a mortgage call upon the grantee to contribute towards [212] its extinguishment ? If he cannot do so, then his grantee, devisee or heirs at law cannot, for they each stand in his shoes or, as it has been expressed, “ sit in his seat.” The conveyance in this case from the mortgagor to Mrs. Bissett contained a covenant of warranty, but none against, encumbrances, and was for a nominal consideration.. This, under the authority of Gaskill v. Sine and Harrison v. Geurin, would give it preference over the remaining property were it not for the clauses with regard to encumbrances. If it be admitted that the presence of the last of these clauses—that which follows the covenant of warranty—may be accounted for, as argued by Mrs. Bissett’s counsel,, upon the idea that the grantee was merely providing against the possibility of an action at law, yet there still remains to be accounted for its previous insertion just after the description of the premises. The question arises, Why was it inserted there ? and I can conceive of no reason for its insertion except to declare that the property conveyed must bear its just proportion of the encumbrances. It is true that in the case relied upon, Hoy v. Bramhall, 4, C. E. Gr. 563, the language used was more explicit than that used here. There the words were : “ Subject, however, to the payment by said grantee of all existing liens upon said premises,” and I can find no case precisely like the one under consideration. But it seems to me that no less effect can be given to the words here used than was given to those used in Hoy v. Bramhall. To give them any less effect is, in my judgment, to disregard them entirely, which, of course, cannot be done. The second ground taken by Mrs. Bissett’s counsel—the provision contained in the will—seems to me to fall with the first. So far, of course, as relates to the portion of the mortgaged premises devised to Mrs. Bissett, there can be and is no dispute. The intention of the testator that she should have it free of the mortgage is clear. But I am unable to see how she is in a position which enables her to contend that the clause in question can be construed as relieving the land conveyed to her from the lien of the mortgage. [213] Counsel for the defendant argues that the deed must be construed in connection with the will which had already been made, and in view of the charge in question, and so construed, he argues, the result is to show an intention to convey the premises to Mrs. Bissett free of the mortgage. But it seems to me such is not the result of considering the two writings together—if that were admissible—but the contrary. I should infer that the testator meant to say: “ I have devised this land, with other lands, to Thomas, charging him with the mortgage debt. I now convey a portion of it to you, Mrs. Bissett, subject to a proportionate share of the mortgage debt.” The intention of the testator as expressed in the will is clear. He intended his son should have all the mortgaged premises, except that devised to Mrs. Bissett, from and out of which to pay the mortgage debt. After so expressing himself in his will he conveyed away a portion of the land so devised, taking care, however, to leave it expressly subject to a proportionate share of the mortgage debt, and left his will otherwise unrevoked. The result was to devise the remainder of the mortgaged premises to Thomas, subject only to their proportionate share of the mortgage debt. But counsel further argues that the will must be held to speak from testator’s death, with the result that it must be construed in all respects as if the testator had devised to Thomas so much only of the mortgaged premises as he had not conveyed to Mrs. Bissett, and had charged him with the payment of the whole mortgage debt. I' am unable to adopt that view. The rule that a will, for some purposes, speaks from its date, and for other purposes from the death of the testator, applies only to the ascertainment of the property which passes by it. It relates to the effect and operation of the instrument rather than to its construction. It has no application to a case where the meaning of language is involved. The intention of the testator here is clear, that the charge and devise were co-extensive. I am unable to see how a mere subsequent conveyance of a portion of the premises can change the plain meaning of the language. I will advise a decree in accordance with these views.