Citation Numbers: 61 Vt. 516
Judges: Tart
Filed Date: 2/15/1889
Status: Precedential
Modified Date: 7/20/2022
The opinion of the court was delivered by
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.
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
Decree reversed and cause remanded with mandate, in accordance with this opinion.