Manwaring v. Terry ( 1873 )

Ogden, P. J.,

on rehearing.—This cause comes up before us now on a rehearing, and we have given it much and careful consideration, and we confess it has not been without much difficulty that we have been able to discriminate between the rights of all parties, and to determine, at the date of the institution of this suit, where the title to the land in controversy legally; and equitably vested.

Counsel appear to think that because the several conveyances were by fractional portions of the whole tract, and as the title to each particular fractional part attached to and became vested in the whole, that therefore the principles of law could not be applied to the several interests, as though each party owned a particular part by metes and bounds. But so far as the interests of the several parties involved in this case are concerned, we are unable to discover any difference in the law governing their rights, whether their interests are defined by a particular portion or undivided fractional part of the whole, since a deed or mortgage may attach to and become vested in a particular undivided fractional portion of the whole, and will adhere to that particular fractional part as firmly and distinctly as though the interest was defined, by a divided part, by metes and bounds.

In other words, if there be four equal .and undivided interests in a tract of land, designated respectively by the first four letters of the alphabet, a deed or mortgage given for or upon that portion designated by the letter A, can never, without the express consent of all parties interested, be shifted so as to attach to the portions known as 0 or D, and a mortgage given upon C can by no operation of law be made to aflect A or D, or any other portion of the whole. With this fact as a rule or guide for the solution of the problem before us, many of the apparent difficulties in this case are easily solved.

C. A. Buckley mortgaged to Grohlman one-half of the Mason survey, when, in fact, he owned only a fourth. The Grohlman mortgage attached, at once, to that particular one-fourth, then owned by Bnckley, and by force of the principles of both law and equity, would attach to any after-acquired portion, until it covered the one-half called for. Had Buckley afterwards acquired but an additional one-fourth interest, there would have been no difficulty in determining what particular half was subject to the mortgage, regardless of the fact that the legal title to that half may have passed to any number of purchasers. At the execution of the mortgage, Buckley owned but one-fourth interest in the land, to which the mortgage at once attached ; and when he afterwards purchased an additional one-eighth, that too became subject to the mortgage. There was, then, three-eighths of the Mason survey incumbered by the Grohlman mortgage, and this three-eighths Buckley conveyed by quit-claim to Sutton. There can be no doubt that Sutton’s three-eighths was, at this time, subject to the mortgage. Sutton purchased with a full knowledge of this fact, and paid only for the interest conveyed to him, which was simply the right of redemption. And we think it cannot be legally or justly contended, that when Buckley purchased the Grier half, he thereby released the three-eighths in the hands of Sutton from the force of the mortgage, and invested in Sutton a perfect title, which he had not contracted to do, and which Sutton had not purchased or paid for. Had Buckley retained the Sutton three-eighths until after his purchase of the Grier half, then it might have been contended, with reason, that the mortgage of Gohlman would have attached to any portion of the seven-eighths. But Sutton purchased and paid for only an incumbered three-eighths, and neither he nor his vendee has a right to complain that thej7- did not get an unincumbered interest.

It is immaterial, so far as a proper determination of this cause is concerned, whether Mrs. Terry purchased a quit-claim or warranty title; she only received the title of her vendor, and she has no right, in law or equity, to claim more. The Gohlman mortgage having, by reason of the transfers of interest, become attached to the Sutton three-eighths, held the same for its satisfaction; and when Buckley purchased the Grier half, it also attached to one-fourth of that, so as to cover one-half interest in the whole tract; and upon the foreclosure of that mortgage, the purchaser at the sheriff’s sale received a perfect title to the Sutton three-eighths, and to one-fourth of the Grier half, leaving three-eighths of the whole tract subject to the Pettingill deed of trust. It would, therefore, be extremely inequitable to take from the purchaser, under the Pettingill deed of trust, an unincumbered title to three-eighths of the land, and give it to Mrs. Terry, in order to make good her title which was purchased from Sutton with a full knowledge of its imperfections.

After a thorough investigation of the whole case, we are forced to the conclusion that in our former opinion we arrived not only at the law, but the equities which should control the interests of all parties concerned, and. we therefore affirm our former judgment in this case.

Affirmed.