Bailey v. Warner , 28 Vt. 87 ( 1855 )

The opinion of the court was delivered by

Bennett, J.

The bill seeks a conveyance of certain real estate to the oratrix. No question can arise but what, from the bill and answers, the oratrix has made out an equitable right to relief against Lester S. Warner, and the only question as to Amasa Warner is, which has the superior equity ? he or the oratrix? As the legal title was in Rockwood at the time of the service of the plaintiff’s attachment, the case is to be tried upon the same principles as it would have been, if 'the title had still remained in him, and he made a party to the bill. Rockwood held the legal title as against Lester S. Warner, by means of a mistake in his deed to him. No question can be raised but what Rockwood could be compelled to surrender up the legal title to Lester S. Warner, who had the primary equitable title, had it continued to remain in him. The equitable right to an undivided portion of the premises was acquired by the oratrix by her attachment and levy of execution against Lester S. Warner. The attachment was constructive notice to Amasa Warner of the plaintiff’s lien upon the property at the time he took his deed from Rockwood. The question then is, had Amasa an equity prior in time to that of the oratrix which he can set up to defeat or override her equity, and which will enable him to- hold the legal title, against her, acquired by him subsequent to her attachment. Though it may be true that, in equity, the mortgage which was put upon this property by Lester S. Warner, and which had been paid in part by Amasa, should be kept on foot, so far as was necessary to indemnify Amasa for the sum of money he paid on the mortgage, yet this right, however, is not by force' of the contract of mortgage, but arises out of the chancery principles of subrogation, and, consequently, the chancellor might well refuse to make his rights by substitution coextensive with what they would have been if he had been the mortgagee. A mortgagee cannot be compelled to rely upon a portion of his mortgaged premises, though adequate security. To compel this, would be to make contracts for the parties, not to enforce them. But whatever rights Amasa had in this case, arising out of his having paid a part of the mortgage, being by the principles of substitution, a court of equity may set up the' mortgage, so far as is necessary to protect Amasa in paying what he did under the mortgage, and decline going further, if equity requires it. So far as the residue of Amasa’s claim upon the premises is concerned, it is without foundation. It rests in parol, and is within the statute of frauds, and can have no effect against a Iona fide purchaser, or attaching creditor without notice. Amasa did not make the advancements on the supposition that they were to be attached to the mortgage given to Adams, or upon the faith of the legal title being in Rockwood, but he claims in his answer that he was to have security upon 'the property direct from Lester S. Warner.

In this opinion, we have gone upon the ground that the answer was responsive to the bill, and have thought it advisable to express an opinion upon the legal effect of the facts stated in the answer, although we may think the answer not responsive to the bill, (a point not decided,) as by this means there can be no occasion to apply to the chancellor, to take testimony upon the traverse of the answer. The chancellor was right in confining Amasa’s claim upon the premises under the Adams mortgage, which was but an equitable one, to that portion of the premises not covered by the levy of the oratrix, as they were ample. There is no sufficient reason shown why the oratrix should not have the legal title of that part of the premises which she levied upon conveyed to her.

Ths result is the decree of the chancellor is affirmed with costs,