Heath v. Pratt , 51 Vt. 238 ( 1878 )

The opinion of the court was delivered by

Barrett, J.

The case shows that the land purchased by the defendant fell short by a few acres of the quantity covenanted that there was in the deed of the orator to the defendant. The defendant has recovered a judgment against the plaintiff for the deficiency in the quantity warranted. The defendant gave a mortgage on the land conveyed by the orator, to secure $1,500 of the purchase-money. The defendant’s judgment represents the deficiency in the quantity, so that the orator’s mortgage should be regarded as co-extensive with what the defendant has got by virtue of plaintiff’s deed to him, viz., the land actually conveyed and the money that represents the said deficiency. Said $1,500, and all but one year’s interest on it, are due to the orator. Said judgment may be regarded as so much avails from turning a portion of property covered by the deed and mortgage into money, for which the orator is accountable to the defendant; and he asks to be permitted to account by applying the amount as so much in payment of what the defendant is owing for what he got by the orator’s deed to him. In a suit at law by orator for that debt, this judgment would be available in offset by plea. Prom the relation of the cause and ground of that judgment to the security intended to -be given by the mortgage, we think it proper for the orator to make, and the court to grant, the application. The propriety is enforced by the fact, that the defendant is not responsible for the debt, and the real estate covered by the mortgage, exclusive of what the judgment was recovered for, is far short of adequate security for the sum due. It would be a perverse equity that would deny such an application, and permit’ the mortgagor to pocket that money without paying, or being able to pay, his debt for the land owing to the orator. We find no occasion for referring to or remarking upon the books and cases cited in argument. The obvious application of the principle, upon which the doctrine of offset in equity is based, not only justifies but requires the allowance of the offset in this cause.

The decree is reversed, and a decree is to be rendered by the Court of Chancery for the orator, for the relief prayed for, and his costs. Remanded with mandate.