Tarbell v. Durant , 61 Vt. 516 ( 1889 )

The opinion of the court was delivered by

Tart, J.

In March, 1881, Daniel Tarbell owned certain land 'in Royalton, of which Ephraim Thayer was mortgagee by absolute deed. In May, 1881, a part of the land was sold to one Day, who mortgaged it to Thayer, under an arrangement that -the latter should hold the note secured by the mortgage, and the mortgage, in place of 'the land so sold. Thayer therefore held :as security for his debt against'Daniel Tarbell, the land remaining unsold and the Day note. In August, 1883, Durant attached the land remaining unsold as the property of Daniel Tarbell, •after judgment, set off the land, afterwards had the set-off vacated for some irregularity, and under a late statute advertised the land for sale. In November, 1883, Daniel Tarbell assigned the Day note, subject to Thayer’s interest, to the orator, as collateral security. Tn 1884-6 Thayer foreclosed his mortgage covering the attached land and the Day note, making the orator a defendant, and the orator, to protect his interest in the Day •note, paid the amount of the decree.

The orator seeks subrogation, and that Durant pay him the ■amount paid by him to redeem, or be foreclose 1; and also seeks foreclosure against Daniel Tarbell.

I. The orator in redeeming from the Thayer decree was not a volunteer. The facts do not make him one as in Downer v. Wilson, 33 Vt. 1, and the case is analogous to Chandler v. Dyer, 37 Vt. 345. Why cannot the orator take by assignment such a right to redeem as Chandler acquired by attachment ?" He had a right to the Day note subject to the interest of ThayerWhy could he not protect it as any junior encumbrancer can protect his interest ? He was compelled, and had the right, to redeem-

II. Durant’s attachment was prior to the assignment of the Day note to the orator. Did Durant acquire by his attachment" of the land any right to have the mortgage, resting upon it and’ the Day note, satisfied out of the Day note, i. e., as against Daniel Tarbell ? We think that this case should be governed by the samé rule that would be applied to it in case the Day land' had not been sold, and the orator had acquired in any legitimate-manner a right to it, subject to the rights of Thayer. The land’ and the note were subject to a common burden, and the interests-of the parties were acquired at different times. Where lands subject to a common burden are sold inparcels at different times,, to different purchasers, the burden must be removed by the-purchasers in the inverse order of their purchases. Lyman v. Lyman, 32 Vt. 79. But as stated in Bispham Pr. of Eq. s. 333, “ This rule of course only applies when sale of the lot is made free of encumbrances. If the purchaser takes it subject to the? mortgage, the presumption is that the amount has been deducted from the purchase money, and the burden of the mortgage-ought, therefore, justly to fall upon the vendee ; and in such a-case, if the vendor or those claiming under him by subsequent sales, are compelled to pay the mortgage, they will be entitled to contribution or exoneration, as the case may be, at the hands-of the first purchaser.” What right did Durant acquire by liisattachment, in 1883 ? Only the right, as against Daniel Tarbell, to levy upon the equity of redemption ; to set off the land upon?, his execution, subject to the Thayer mortgage. The right has-since been given him to sell the equity of redemption. Act No. 39, Session Laws, 1884. Act No. 65, ibid. 1886. The sale would be of the debtor’s interest, subject to the encumbrance. An attaching creditor would therefore acquire no greater right than though he had taken a deed of the premises subject to the mortgage, and would have no right to .have applied the rule as established in Lyman v. Lyman, supra. What rule should then govern the parties in adjusting the common burden resting upon, the property, in different parts of which they have respectively acquired an interest ? We think the parties should contribute to the payment of the burden in proportion to the value of the property in which they are respectively interested. . They have agreed that the value of the attached land is three thousand dollars ; of' the Day property two thousand dollars. The Day mortgage may be of greater value than the Day land, as. the maker of the mortgage notes may be solvent. The attached land should pay that proportion of the amount paid by the orator on the Thayer decree, which three thousand dollars, its value, bears to the combined value of the attached land and the Day mortgage. We think the orator entitled to relief under, the bill as drawn. The prayer is for- the particular relief of payment by the defendant of the whole sum paid to redeem from the Thayer decree, and for general relief ; and, under the latter, the orator may pray at the bar for a specific relief not particularly prayed for in the bill, if by the proofs he is entitled to the same, and the relief is consistent with the case made by the bill, and not inconsistent with the specific relief prayed for. Cooper’s Eq. Pl. 14; Heard’s Eq. Pl. 45. Upon the facts alleged in the bill the orator is entitled to the exact relief prayed for, except as to the sum. In regard to that he is entitled to that proportion of the amount paid to redeem from the Thayer decree as hereinbefore stated, instead of the whole sum. Durant’s estate is the only one of the defendants contesting the orator’s claim, and upon a compliance by the estate with any decree made in this case the injunction now in force should be dissolved so that the estate may pursue its rights under its execution.

Decree reversed and cause remanded with mandate, in accordance with this opinion.