Woodbury v. Swan , 58 N.H. 380 ( 1878 )

All facts well alleged in the bill, and not denied or explained in the answers, will be held to be admitted. 8th Rule in Chancery.

The answer contains a denial sufficiently specific to put the plaintiff upon proof that Perkins assumed the Stowe mortgage, if such proof is required: that is to say, if the assumption of the mortgage is not a legal incident to the purchase of the equity, and, consequently, a charge upon the estate, which it was the duty of Perkins and his grantees to assume and provide for. But the plaintiff's position, that the acceptance of a grant of land subject to a mortgage charges the grantee with the legal duty to discharge the incumbrance, cannot be sustained. Where land is conveyed in terms subject to a mortgage, the grantee does not undertake or become bound, by the mere acceptance of the deed, to pay the mortgage debt. In the absence of other evidence, the deed shows that he merely purchased the equity of redemption. Strong v. Converse, 8 Allen 557; Drury v. Tremont Improvement Company, 13 Allen 168; Fiske v. Tolman, 124 Mass. 254. But if a grantee take a deed containing a stipulation that the land is subject to a mortgage, which the grantee assumes or agrees to pay, a duty is imposed on him by the acceptance; and the law implies a promise to perform it, on which promise, in case of failure, assumpsit will lie. Pike v. Brown, 7 Cush. 133; Braman v. Dowse, 12 Cush. 227; Jewett v. Draper, 6 Allen 434; Furnas v. Durgin, 119 Mass. 500; Trotter v. Hughes,12 N. Y. 74; Belmont v. Coman, 22 N.Y. 438. The cases above cited are not in conflict with Hancock v. Carlton, 6 Gray 39, and Taylor v. Preston, 79 Pa. St. 436, to which our attention has been called by the plaintiff, being marked by the important and essential distinction that in the two latter cases, but not in the former, the grantee's obligation to pay an existing incumbrance was plainly expressed and assumed as a part of the consideration.

But although the plaintiff has not shown that any legal or equitable duty to discharge the Stowe mortgage was imposed upon Perkins, either by contract or inference, he is not therefore to be deprived of an interest in the Salem property by force of the foreclosure of the mortgage of L. Woodbury to Perkins. Mrs. Stowe's claim upon that property having been satisfied by the sale of other estate of the plaintiff, he is entitled, for the purpose of effecting substantial justice, to be subrogated to the position and treated as the assignee of the Stowe mortgage. And it is of no consequence whether the mortgage may have been in fact cancelled and the debt discharged by the levy of Mrs. Stowe's execution. The debt and incumbrance may still be regarded, in equity, as a subsisting lien in favor of the plaintiff, as against the foreclosure of the Perkins mortgage.

The satisfaction of a judgment for a mortgage debt, by the levy of an execution on other property of the mortgagor than that mortgaged, is a payment of the debt, within the meaning of the rule of subrogation, which keeps the mortgage on foot for the benefit of the mortgagor, when justice requires it to be regarded as assigned to him and not discharged. Robinson v. Leavitt, 7 N.H. 73, 100-112; Rigney v. Lovejoy, 13 N.H. 247, 252; Heath v. West, 26 N.H. 191, 201; Bell v. Woodward, 34 N.H. 90.

The application of the principle to the present case is made upon the assumption, of course, that the defendants have not maintained, by any proof, the averments of their answers, to the effect that the plaintiff never had any real interest in the Salem property, — averments denied by the plaintiff in his replication, and which, until supported by evidence, must be disregarded. Story Eq Jur., s. 1529; Busby v. Littlefield,33 N.H. 76, 85.

The appearance of the defendants confers jurisdiction, except where it is expressed to be for the sole purpose of objecting to the authority of the court to proceed. March v. Eastern Railroad Company, 40 N.H. 583; Merrill v. Houghton, 51 N.H. 61.

From what has been already said, it is apparent that the Salem land is chargeable with a trust; that is to say, the court will not permit the defendants to hold the land unless they comply with the conditions charged as annexed to the conveyance, or indemnify the plaintiff on account of his satisfaction of the Stowe mortgage.

Whether or not the plaintiff might have a partial remedy by means of a real action against Swan, there is abundant matter in the case for the proper consideration of a court of equity. The jurisdiction of a court of equity to remove a cloud from the title to real estate has been long established. Downing v. Wherrin, 19 N.H. 9, 92; Brooks v. Howland,58 N.H. 98.

There is no reason why Mrs. Stowe should be made a party to these proceedings. Her interests will not be affected by any decree that may be made.

The demurrer is overruled, and the

Case discharged.

BINGHAM, J., did not sit.