Hall v. Hall ( 1882 )

Carpenter, J.

(After stating the facts.) We think the

plaintiff is entitled to the relief sought. We do not rest our judgment however on the ground of a vendor’s lien. Conceding that such a lien exists in this state, there may be some difficulty in enforcing it in favor of an assignee. We choose to regard the property as subject to a mortgage in equity.

Mrs. Hall, the only party who appears to defend, cannot object to the establishment of an equitable mortgage against her on the ground that she is a feme covert, for she is a mere volunteer. Ho part of the consideration moved from her. Therefore the case is not within the principle of those cases where courts ..refuse to set up a deed or enforce a contract specifically against the wife. The underlying principle of those cases is protection to the wife’s estate. Here her estate is in no danger. She has paid nothing and is required to pay nothing, except to pay for property which she has actually received. To apply the principle of those cases to this would be a perversion of it and operate as a fraud.

Nor is it important that she did not know of the agreement to give the mortgage at the time she accepted the deed. She parted with nothing then, and when the agreement afterwards came to her knowledge she could have surrendered the land and have been in no worse condition than she was in before the deed was given. In equity and good consience she was bound to do that or else perform the agreement which was a material part of the consideration for the deed under which she holds.

Here was an agreement in writing, for a good consideration, to give a mortgage. There was an obvious reason for not giving it at the time; the existing mortgage was to be increased and the mortgage agreed to be given was to be a second mortgage. Some delay was unavoidable, and the parties took the precaution to put the agreement in writing, so that no question arises under the statute of frauds.

This seems to be a proper case for the application of the maxim that equity looks upon that as done which ought to have been done. “ The true meaning of this maxim is that equity will treat the subject matter as to collateral consequences and incidents in the same manner as if the final acts, contemplated by the parties, had been executed exactly as they ought to have been, not as the parties might have executed them. * * The most common cases of the application of the rule are under agreements. All agreements are considered as performed, which were made for a valuable consideration, in favor of persons entitled to insist on their performance. They are to be considered as done at the time when, according to the tenor thereof, they ought to have been performed.” 1 Story’s Eq. Jur., sec. 64 g. See also Jones on Mortgages, (2d ed.) sec. 163, and cases cited.

Applying these elementary principles to the case before us, it is apparent that, as soon as the mortgage was given to the Savings Society, in March, 1877, the mortgage agreed to be given should have been given. If full justice could not otherwise be done, perhaps we might be justified in establishing the mortgage as of an earlier day, on the ground of the delay in giving the first mortgage. But that does not seem to be necessary, as, under the circumstances, security given after the mortgage was given to the bank will be effectual according to the intention of the parties.

We fail to discover that Mrs. Hall, the defendant, has any equity arising from the fact that she executed a note and mortgage to the Savings Society. She took the land incumbered to the amount of eighteen hundred dollars. That amount, if she would retain the land, she must pay. The balance she had in cash, and of course it is just and reasonable that she should pay that. Charging the land subject to that mortgage with the burden of paying the plaintiff’s demand is only charging the property which she actually received; and that does her no wrong.

Nor is it any disparagement of the plaintiff’s equity that she received the note as a gift or legacy. That is a matter which in no wise concerns the defendants. They cannot be permitted to say to the plaintiff,—“ You paid nothing for your notes; therefore we should be permitted to hold the land without paying for it.” The plaintiff’s claim is as meritorious legally as it would have been had she taken them by distribution or purchase.

We advise the Superior Court to render judgment for the plaintiff, and to pass a decree containing in substance a description of the premises, the mortgage to the Litchfield Savings Society, the notes held by the plaintiff and the amount due thereon, and declaring that the real estate, subject to that mortgage, shall stand charged with the payment of the notes in the same manner and to the same extent that it would have been if the defendants had executed a mortgage thereof on the 2d day of March, 1877.

In this opinion the other judges concurred.