Brown v. President of the Worcester Bank , 49 Mass. 47 ( 1844 )

Wilde, J.

The facts, in the order in which they are stated in the bill, are somewhat complicated; and one material fact to raise the questions argued appears to have been inadvertently omitted, namely, the time of the attachment of the property in question by the defendants; but we understand it was made prior to the recording of the mortgage deed from Holbrook to the plaintiff Brown. The material conveyances and facts, jn the order of time, are these: Both parties derive their titles from

Asa Woodbury, who in 1830 conveyed in mortgage, to one Mary Chase, a tract of land containing fifty acres, embracing the lands afterwards, viz. in 1838, conveyed to Sylvanus Holbrook, containing about ten acres, in five parcels, being part and parcel of the said fifty acres; and on the 4th of October 1839, the said Holbrook conveyed the same to the said Brown ; but the deed was not recorded until April 1840 ; before which, as we understand, the premises were attached by the defendants, and afterwards were taken in execution and were set off to them in satisfaction of the same. In 1842, Mary Chase assigned her mortgage to the defendants.

By the levy of the execution, the premises were estimated at the sum of $7300, from which was deducted the sum of $164V17, the whole amount of the Chase mortgage, and $124 for an incumbrance on the water privilege. The prayer of the bill is, to redeem the mortgage to Mary Chase, and by her assigned to the defendants, on payment of the amount due thereon ; and the plaintiffs deny that the defendants have any legal title to the premises, by virtue of the levy of their execution ; averring the same to be inoperative and void. And we are of opinion that this objection to the levy is well founded; the whole amount of the Chase mortgage having been deducted: Whereas there should have been deducted only the said Holbrook’s proportional part, and this should have been estimated by the appraisers. It was said that this would be difficult or impracticable; but there seems to be no great difficulty, and certainly no impracticability, in ascertaining the relative value of Holbrook’s ten acres, and the remaining forty acres belonging to Woodbury or his assigns. And every difficulty might have been avoided by the sale of the equity. The plaintiffs have therefore the right to redeem the Chase mortgage ; and they will hold as assignees of that mortgage, until the owners of the forty acres shall contribute their proportion of the sum due on the mortgage.

This case differs from Jenks v. Ward, 4 Met. 404, in a material circumstance. In that case, Turner, the judgment debtor, was obligated by the condition contained in his title deed to pay the whole mortgage debt deducted by the appraisers in estimating the value of the land thus incumbered. And the case was decided on the ground of the debtor’s obligation and liability to pay the whole mortgage debt, and to remove the incumbrance. In the present case no such obligation or liability on the part of Holbrook is pretended, and his proportional part only of the debt due on the Chase mortgage ought to have been deducted. The deduction therefore of the whole mortgage debt was unauthorized, and consequently the levy was void.

Demurrer overruled.