Sanford v. Hill

A mortgagor conveyed whiteacre, a part of a tract covered by the mortgage, to E, by a warranty deed, with a covenant against encumbrances, and after-wards blackacre, another part of the tract, by quitclaim deed to S, both deeds being duly recorded. Whiteacre by successive conveyances became the property of D. S having been compelled to pay the whole mortgage debt, brought a bill against D, as owner of whiteacre, to compel him to contribute such part of the sum paid as the value of whiteacre was of the value of the whole tract. Held that whiteacre was discharged from the burden of the mortgage debt and that D was not bound to contribute. The conveyance of whiteacre to E free from encumbrance, with a record of the deed, was a declaration to all the world that the burden of the mortgage was assumed wholly by blackaere. If however blackaere should not be sufficient to satisfy the mortgage debt, white-acre would be liable to make up the deficiency, and the record of the mortgage showed this liability. The lien of the mortgagee upon the whole land was not affected by the equities that had arisen between whiteacre and blackaere, and in a decree for a foreclosure of the mortgage these equities would not be taken notice of. They could be settled only in a suit between the owners of these pieces. Upon the conveyance of whiteacre by the mortgagor to E, free from encumbrance, E agreed by parol to pay a certain sum to the mortgagee upon the mortgage debt, which sum was allowed as part of the price of the land. D, the final owner of this piece, bought in good faith for full value, with no notice of this agreement. Held that he was not affected by it. D bought while a foreclosure suit upon the mortgage was pending, and of a party who, purchasing from E, had agreed to pay the sum which E had promised to pay on the mortgage debt. Held that, having bought in good faith and without notice, the fact that the foreclosure suit was pending did not affect the question of his liability to contribute, this question not being involved in that suit.

Bill for contribution and for a foreclosure; brought to the Superior Court in Fairfield County. The following facts were found by a committee:— Maria Bouton on the 16th day of September, 1870, made a mortgage of certain real estate to the Norwalk Savings Society to secure a note of $10,000, which mortgage was duly recorded. A part of the land mortgaged was a tract in the village of Norwalk, containing four lots and a gore of land, and bounded upon a city street. The lots were designated upon the trial as A, B, O and D. On the 9th of September, 1871, the said Maria Bouton conveyed to one E. J. Hill the two middle lots, B and G. This conveyance was by a warranty deed in the usual form, in which no reference was made to any mortgage or incumbrance whatever. This deed was duly recorded. When it was delivered to Hill he was aware of the existence of the previous mortgage, and orally agreed with the said Maria, through her agent, the petitioner Thomas L. Sanford, to assume and pay as part of the purchase money for the two lots the sum of $600 upon the mortgage, being $300 upon each lot. It was further orally agreed between them that to the extent of this sum he was not to be protected by his warranty deed. Hill never performed his agreement. He subsequently conveyed lot 0 to one Orange S. Brown, who paid the Nor-walk Savings Society the sum of $300 upon the Bouton note and received from them a release of his lot from the mortgage. The savings bank also released to other parties lot D, so that on the 14th day of August, 1875, the savings bank mortgage covered only lots A and B and the gore. On the 15th of January, 1873, the remaining one of the two lots deeded to Hill, being lot B, the land in question in the present suit, was by him conveyed to Lewis Hubbell and Marshall H. Tolies by a quitclaim deed in the usual form, in which deed no mention was made of any incumbrance upon the premises whatever. Hubbell & Tolies were, however, aware of the existence of the savings bank mortgage and verbally agreed with Hill to assume and pay, as part consideration for the lot, the sum of $300 upon the Bouton note. Hubbell & Tolies paid to the savings hank interest in advance upon the $300, but never paid the principal. On the 20th day of October, 1873, the said Maria Bouton, by a quitclaim deed in the usual form, in which deed no mention was made of any incumbrance upon the premises, conveyed to the petitioner Delia A. Sanford, the gore and lot A. There was no evidence tending to show that the said Delia at the time of receiving her quitclaim deed from the said Maria knew of the agreement between the said Maria and E. J. Hill, above stated, or had any knowledge of the mortgage to the savings bank, but the said Thomas L. Sanford, the husband of said Delia and her business agent, was fully informed of all the facts. On the 13th of August, 1875, Hubbell & Tolies filed their petition in bankruptcy, and were subsequently adjudicated bankrupts, and John H. Smith was subsequently, and prior to the 1st day of December, 1875, chosen assignee of their estate. By an examination of the town records Smith learned of the Bouton note and mortgage, and from information derived from Hubbcll and from the bankrupts’ schedules, ascertained that Ilubbell & Tolies considered that lot B, procured by them from Hill, was charged with the payment of $300 upon that note and mortgage. On the 14th of August, 1875, the savings bank sold and delivered the Bouton note to Ebenezer Hill, a brother of the respondent, and quitclaimed to him all the land not theretofore released by them from the mortgage, to wit, the gore and the two lots A and B, adjacent to it, the most southerly one of which lots, B, is the one now owned by the respondent. Ebenezer ITill brought his petition for the foreclosure of the mortgage to the December term of the Superior Court, 1875, making the said Thomas L. and Delia A. Sanford and the said Smith, assignee of Hubbell & Tolies, parties respondent ; and at that term a decree was passed finding the amount due upon the note, and ordering the said Thomas L. Sanford and Delia A. Sanford to pay the same with costs and interest, amounting to $1,079.05, on or before the third day of April, 1876, or be foreclosed of all right to redeem the premises mortgaged, and that the said Smith, as- assignee, pay the same on or before the tenth day of April, 1876, or be foreclosed, provided the same had not been paid by the said Sanford and wife. On the 3d day of April, 1876, the .petitioners being unable otherwise to raise funds for the payment of the amount called for by the decree, secured a loan of the amount from one Stephen Olmstead. As a part of the security given for the loan, the petitioners, by a warrantee deed free from all incumbrance, conveyed to Olmstead the premises quitclaimed to the said Delia by the said Maria Bouton. Immediately after the execution and delivery of the deed and other security Olmstead paid to Ebenezer Hill, in behalf of the petitioner Delia, in accordance with the decree, the sum of $1,079.05. Both the petitioners and Olmstead regarded the warrantee deed to Olmstead as a deed in trust, the land to bo reconveyed on repayment of the loan, and Olmstead in making the payment acted solely for the interest of said Delia. Before making the payment the petitioners sought to secure from Ebenezer Hill a quitclaim of the gore and lot A adjacent to it, upon the payment of an amount claimed to be a proportionate amount of the mortgage, but he refused to receive from them less than the full amount due upon the mortgage with interest and costs. On the 3d day of May, 1877, in accordance with a decree passed by the Court of Common Pleas of Fairfield County, Ebenezer Hill executed and delivered to the petitioner Delia a quitclaim deed of the land conveyed to him by the savings bank, and delivered to her the Bouton note. On the 3d day of December, 1875, the day following the service of the foreclosure petition upon him, Smith, the assignee of Hubbell & Tolies, executed and delivered to the respondent a deed of all the interest that had been owned by them in lot B, with a covenant of warranty and freedom from encumbrance. Shortly before this time the respondent had employed one Mead, a real estate agent, to negotiate with Smith for the purchase of lot B. Mead knew of the existence of the Bouton note and lliortgage, and was informed by Smith that lot B was covered by the mortgage, but 'there was no evidence that Mead or the respondent had, before the delivery of the deed of Smith to the respondent, any knowledge concerning the agreement made by E. J. Hill with Maria Bouton. The respondent authorized Mead to offer Smith $200 for the lot, and Smith agreed to sell the lot to the respondent for that sum, and the respondent paid that sum for it. Smith at first tendered to the respondent a quitclaim deed of the equity of redemption in the lot. The latter then for the first time became aware of the existence of the mortgage. Believing upon examination that as between himself and Mrs. Sanford, (who then owned the rest of the land covered by the mortgage,) it was, in the condition of the title, her duty to pay the whole mortgage, and that she could be obliged to do so, the respondent communicated his belief to Smith, and refused to take a deed of the equity of redemption and required a warranty deed, which Smith gave, Smith substituting that for his quitclaim deed, because he believed that the form of the deed given by him was immaterial so long as he conveyed only the interest of Hubbell & Tolies. The value of lot B was at the time of the execution of the Bouton mortgage, and still is, four-seventeenths of that of the whole tract foreclosed by Ebenezer Hill. All the conveyances mentioned were duly recorded in the land records of the town of Norwalk. The petitioners, before bringing their petition, requested the respondent to pay a proportional part of the amount paid by them to Ebenezer Hill, but he refused so to do. Upon these facts the court (Beardsley, Jl,) passed a decree in favor of the petitioner, foreclosing the respondent unless he should pay to the said Delia A. Sanford the sum of $282.59 with interest and the costs of the petition on or before the first Monday of April, 1878. The respondent filed a motion in error and brought the record before this court, assigning as errors—1st. That the court erred in deciding that the decree in the foreclosure suit brought by Ebenezer Hill against Smith and the petitioners, did not prechide the petitioners from a recovery under their present petition, in that this respondent’s grantor was by the terms of the decree expressly preferred to the petitioners in the redemption of the mortgage. 2d. In deciding that the respondent is in equity obliged to pay the petitioners that proportion of the mortgage debt paid by them which the value of his lot bears to the value of the whole tract subject to the mortgage, or be foreclosed.