Root v. Stow

Shaw, C. J.

This is a bill in equity, brought by the complainants, as administrators of the estate of Joel Root, against Alva Stow, for an account, and for the adjustment of their respective rights in the mortgaged lands described in the bill. Rowland Bancroft and Joseph W. Bancroft, the original mortgagors, are joined as defendants, on the ground that they might still, perhaps, claim a right to redeem, though, prima fade, such right was forech sed by judgment and the lapse of time ; but they have entered no appearance, and therefore, it is presumed, make no claim.

This is a somewhat involved and complicated case, the leading facts of which are stated in the case of Root v. Bancroft, 10 Met. 44, where it was intimated by the court that the plaintiffs’ remedy was by bill in equity.

The mortgagors, Rowland and Joseph W. Bancroft, being out of the question, the lands mortgaged are to be held by the representatives of Joel Root, the original mortgagee, and the defendant Alva Stow, also an original mortgagee, and surety on two of the notes, according to their respective equitable rights.

We are of opinion that the court has jurisdiction in equity, both upon the ground that the original mortgagees were trustees for each other, and were tenants in common, and that, in regard to real estate held in mortgage, the administrator is the representative of the intestate. The original mortgage was made to Joel Root and Alva Stow, who took a defeasible estate in fee, as tenants in common; but the condition was, to secure a debt to Root only. That debt, however, in fact, consisted of three notes, on two of which Stow was surety to Root. On the face of the mortgage deed, Stow took a moiety of the real estate, as tenant in common; but having no beneficial interest in the condition, he was, prima fade, trustee of such moiety, in the first instance, for Root. Then, if Stow, by this deed, acquired any right, legal or equitable, to the mortgaged property, as security for the repayment to him of any sums which he, as surety on the two notes, might be held to pay — as we think he did — his condition, in relation to Root, could not be better than that of a second mortgagee. His claim must be subordinate to that of Root, and after Root had been paid in full. The condition was, to secure to Root the payment of all the notes. It was only after the mortgagors had failed to pay Root, and after Stow, as surety, had been obliged to pay Root, that Stow had any claim for security, or any equitable or beneficial interest. If the name of Stow had not been introduced into the first deed. but the Bancrofts had made a second mortgage to Stow, conditioned to indemnify him against his suretyship to Root, the relation of Root and Stow would have been nearly similar; the claims of the latter being subordinate to those of the former.

But the fact, that these parties took the original mortgage to themselves and their respective heirs,' makes them tenants in common of the realty; and this is another ground of equity jurisdiction. But further; being such tenants in common, no entry of the one, under a purchase of the equity of redemption, or under color of a judgment, or otherwise, would be deemed an ouster of the other ,• but, as between themselves, the entry enures to the benefit of both.

Understanding, by the facts, as we do, that the first note described in the mortgage has not' been in fact paid, but that the two subsequent notes have been paid by the respondent Stow, as surety, for which he recovered judgment against the Bancrofts, and took their equity of redemption in satisfaction, the opinion of the court is, that an account of the amount due to the complainants, as administrators, on the first note, must be taken, upon payment of which amount the respondent Stow is entitled to hold the land; but that, unless the •sum, thus found due, be paid within some short time to be limited by the decree of the court, the complainants will be entitled to a decree for the possession of the land.