State v. Throup , 15 Wis. 314 ( 1862 )

By the Court,

Paine, J.

This was an action to foreclose a mortgage, and the only question presented on this appeal arises between two defendants, as to which is entitled to have his portion of the mortgaged premises reserved until the other shall be first sold. Parker, the original grantee from the state, first conveyed the south half of the lot, which now belongs to the appellant Throup. In that conveyance it was provided, that it should be subject to a certain mortgage of four hundred dollars, which the grantee, Case, assumed and agreed to pay, “ and subject also to a certain mortgage to the State of "Wisconsin, which the said party of the first part assumes and agrees to pay according to the terms thereof.” Parker afterwards conveyed the north half, subject to one half of this mortgage to the state, and the defendant Hannah Cribb, who now owns this north half, paid to the state one half the sum due on this mortgage, before the suit was commenced. The question now is, which half should be first sold to satisfy the balance due on the mortgage. The general rule is conceded, that where the mortgaged premises have been subsequently conveyed by the mortgagor, they are to be sold in the inverse order of alienation, and this undoubtedly settles the question, unless the provision in the first conveyance in regard to this mortgage takes it out of the rule. That provision was, that the deed was made, “subject” to this mortgage, which, however, Parker, the grantor, “ assumed and agreed to pay according to the terms thereof1” There is no doubt, as contended by the counsel for the defendant Cribb, that if the south half had been first sold subject to this mortgage, and afterwards the north half sold subject to half the mortgage, and that half had been paid; that as between the two owners of the equity of redemption, the south half, though first alienated, should be first sold. But we cannot place the same construction on the language of the first deed which seems to have been given to it by the court below. It must be conceded that the language is inaccurate, and that the first part of the clause relating to mortgage is repugnant to the last part. The first part de-dares the conveyance to be subject to this mortgage, but the last part provides that the grantor, Parker, was to pay it. If that was so, of course the conveyance was not subject to it, in the proper sense of that term. And it seems clear that the mere use of that word cannot be held to control or qualify the positive, explicit provision that the grantor was to pay off the mortgage.

The' meaning of it, as a whole, being unmistakable, it is perhaps unnecessary to attempt to account for such a use of language, but it may possibly be explained in this way. There was another mortgage on the premises, subject to which the conveyance was made, and the grantee assumed it. This had just been provided for in the deed, and probably for the purpose of showing clearly that the grantee was not to pay this mortgage to the state, the conveyancer deemed it proper to insert something to that effect in the deed, and in doing it, very clumsily referred to this in the same language he had used to refer to the other, not perceiving the repugnancy between the word “ subject” and the plain meaning of the provision that the grantor was to pay it.

This leaves it as though nothing had been said in the first deed in regard to this mortgage, so that as between Parker and any owner of the south half, holding under the first deed, the north half, if it was still owned by Parker, should be first sold upon' this mortgage. And however Parker might bind himself to any subsequent grantees of the north half, it is clear that he could not give them any better right than he himself had, with respect to the equitable rights of his first grantee.

That part of the judgment which directs the south half of the lot to be first sold, is reversed, with costs in favor of the appellant Throup against the defendant Qribb, and the judgment is modified by providing that the north half shall be first sold, and the cause remanded to be enforced accordingly.