Webber v. Mallett , 16 Me. 88 ( 1839 )

The opinion of the Court was by

Weston C. J.

With regard to the six thousand acres, mort~ gaged to the trustees of Williams’ College, by Samuel T. Mallett, by deed dated June 5, 1827, subject to the exceptions therein mentioned, the same having been assigned to the petitioners, nothing can be clearer, than that it is not legally competent for the mortgagor, without the consent of the mortgagees or their assigns, by a conveyance of any part of the mortgaged premises by metes and bounds, to withdraw from the lien created by the mortgage, the parts so conveyed.

As the. lands, of which the respondents claim to be sole seized, were subject to the mortgage, their plea of sole seizin against the petitioners, the assignees of the mortgagees, cannot be sustained. It having been agreed, that judgment is to be rendered, according to the legal rights of the parties respectively, the principal question is, whether in addition to their title as mortgagees, the proportion of the petitioners is to be increased in consequence of the levy made by Nathaniel Ingersoll, in July, 1832, his title under that levy, whatever it was, having passed to the petitioners. For whether the respondents, or either of them, had or had not a right to redeem the land from the operation of the mortgage, need not be decided, as no such right, if it existed, has been attempted to be exercised.

It appears, that Samuel T. Mallett, in addition to the land by him mortgaged to the College, held by other titles in the township, about thirteen hundred acres, in common and undivided, until the greater part of his interest was set off in severalty, in 1828. The deed of release by him made in 1830 to Joseph Mallett cannot affect the levy, the same having been found fraudulent. Until the levy in 1832, Mallett had a right to sell by metes and bounds, the lots set off to him in severalty, subject to the paramount title of the mortgagees. All the land claimed by the respondents, had been conveyed in severalty by Mallett, and the deeds from him were duly recorded, prior to the levy; but the conveyance to David Mallett is out of the question, the same having been found to be fraudulent. There being land enough for the mortgagees, and also for the seven respondents, who claim by deeds not liable to be impeached for fraud, justice requires that the lands to be set off to the mortgagees, should not embrace any part of what has been conveyed to these respondents, if they can otherwise have a fair and equal partition.

This just and equitable course being taken, the title of the respondents to their lots is to be preferred to that derived from the levy, for prior to the time when that was made, the title of Mallett in these lots was transferred, so that his grantees would hold by es-toppel, when the claims of the other co-tenants should be satisfied, by taking their lands elsewhere. It is true the title of these grantees might be defeated by setting off their lots to the petitioners, representing the mortgagees, but for that very reason it cannot equitably be done, if the mortgagees can have elsewhere their just proportion. It would seem, that Mallett had land enough, without touching these lots, to satisfy both the mortgagees, and what was set off by the levy. If so, in our judgment, the petitioners’ claim to this part also is well sustained, for the levy is not by metes and bounds, but the proportion taken by the levy in common, although described as so many acres, must be understood to mean such a fractional proportion of the whole, as the number of acres taken, bore to the whole number owned by Mallett. Judgment for partition is to be entered for the petitioners, and commissioners to make partition are to be appointed, and the petitioners’ part being set off, upon the principles before stated, final judgment will be entered accordingly.