Jamaica Savings Bank v. Howard's , 79 Vt. 372 ( 1906 )

Watson, J.

The mortgage conditioned for the support, etc., of Taft Howard w'as the first incumbrance on the “Home Farm” and on the “Banyard Pasture.” The orator’s mortgage was a subsequent incumbrance covering the “Home Farm” only. By this mortgag-e, however, the whole estate of the farm was granted with warranty. This is manifest from the fact that the clause showing the land to< be subject to a life lease or mortgage for the support of Taft Howard is in a paragraph independent of the description of the premises granted, and that the mortgage contains full covenants .unmodified by reason thereof, ‘except against incumbrances, the latter being immediately followed by the covenant to warrant and defend “against all lawful claims whatever.” Thereby the mortgagor in effect covenanted with' the mortgagee to discharge the existing incumbrance on the premises thus conveyed, and as between them the mortgagee acquired the equitable right to have the burden thereof cast upon the other portion of the mortgagor’s property covered by the common incumbrance. Deavitt v. Judevine, 60 Vt. 695, 17 Atl. 410; Lyman v. Lyman, 32 Vt. 79; Root v. Collins, 34 Vt. 173.

The record of the orator’s mortgage was constructive notice to Sylvia Howard of this equitable charge on the “Ban-yard Pasture” when she subsequently purchased it, and she took her title subject thereto-. See cases above cited.

The report shows that to- save its estate the orator paid for keeping Taft and for extra care of him after the death of Festina, his funeral and burial expenses, and for lettering his gravestone the aggregate sum of one hundred fifty-five dollars. The orator by reason thereof will be subrogated to all the equitable rights of Taft Howard under the mortgage for his support, etc., and since as between the farm and the pasture this burden was by the mortgage to- the orator made to rest primarily on the pasture, the orator is entitled under the first mortgage to- a decree'of foreclosure of all rights, title, and interest possessed by the defendants therein. Lyman v. Lyman, before cited. .

The report states that the collector of taxes threatened to enforce collection of the taxes which had accumulated on the two- pieces of property, and that thereupon the orator paid the taxes as set forth in the statement of this case. It does not appear that the collector did any official act indicating an intention to pursue the land, hence the orator was- not justified in treating the taxes as an incumbrance on- the, land. It follows that the payment of them was voluntary and the orator can have no- relief under either mortgage therefor. Fulton v. Aldrich, 76 Vt. 310, 57 Atl. 108.

No- question is made but that the orator is entitled to- a decree o-f foreclosure of its mortgage on the “Home Farm.” Nor is any question made but that the sums paid by it for insurance and for repairs on the buildings should be allowed as part of the sum due in equity..

Decree reversed and cause remanded with mandate that a decree be entered for the orator in accordance with the views here expressed. Let the costs in the court below be there determined.