Ward v. Seymour

The opinion of the court was delivered by Dunton, J.

This is a bill to redeem certain premises upon which there were two mortgages, a first mortgage to the defendant Seymour, and a second mortgage to the defendant Martin.

Seymour obtained a decree of foreclosure upon his mortgage, by which the equity of redemption, as to the orators, upon the first installment due thereon, was to expire April 20, 1877,-and *324 as to said Martin, May 1st, following. The time limited for the payment of the second and only other installment was April 20, 1878. The orators failed to pay said first installment by the time limited for them to do it, and the decree expired as to them; but Martin paid the same on the 26th day of April following, and thereafter procured from the clerk a writ of possession in favor of Seymour, by his, Seymour’s, consent, and was, by virtue thereof, put into possession of said premises.

No question is made as to the other installment that fell due on the decree on the 20th day of April, 1878, which was several months after this suit was brought; nor as to the omission of an allegation in the bill of a willingness or offer upon the part of the orators to pay the defendant Martin the amount due him on said decree and his mortgage. But it is claimed by the defendants’ counsel in their brief and argument, that the orators lost all right of redemption in the premises on the 20th day of April, 1877, the date of the expiration of the time limited by said decree for them to pay the first installment thereon ; and that Martin by paying the sum within the time limited for him to do so, acquired the full title to the premises. The orators’ right, in equity, to redeem said premises would have expired on the 20th day of April, 1877, had not Martin redeemed the same; but when he paid the installment due on said decree as above stated, it was a satisfaction, pro tanto, of the decree.; and neither Seymour nor Martin had any right thereafter to a writ of possession by reason of the omission of the orators to pay said installment.

The case stands precisely the same so far as the question under consideration is concerned, as though the equity of redemption of the orators, as well as of .Martin, was to expire on the first day of May, 1877. In the way this decree was drawn, it being in the usual form, the fact that a later day was fixed for Martin to redeem than for the orators, does not change the effect of payment upon the decree by Martin. Payment by him satisfied and discharged it as effectually as payment by the orators would have done. This same question was decided by this court in this county at the August Term, 1876, in Heaton, exr. v. Hubbard and Wood, an unreported case, which was an appeal from the *325 decree of the Court of Chancery denying the prayer of a petition to set- aside a writ of possession. Heaton obtained a decree of foreclosure against Hubbard and Wood, which expired as to the former on the first, and as to the latter on the eleventh, day of April, 1876. Hubbard did not pay the decree; but Wood on the day his right to redeem was to expire, paid it, and subsequently procured from the clerk the writ of possession in favor of Heaton sought to be vacated, and placed the same in the hands of an officer with instructions to dispossess Hubbard and put him, Wood, in possession. The decree or order of the chancellor denying the prayer of the petition was reversed, and the cause remanded, with mandate directing that the writ of possession be vacated and set aside, with costs to the petitioner.

We do not doubt that a .decree of foreclosure might be obtained and so drawn as to have the effect claimed by counsel for the one in question ; but we think that a defendant in a foreclosure suit, to entitle himself to affirmative relief, must substantially comply with the requirements in other equity cases; and that such decree should be obtainable only upon a cross-petition, so that the parties, to be affected thereby may have notice that such a decree is asked for, and an opportunity to be heard as to granting the same.

The payment of a decree of foreclosure by one having a right of redemption in the mortgaged premises, will operate either as a discharge of the mortgage or as an assignment of the same, whichever will “ best subserve the purposes of justice.” In the case at bar, the defendant Martin being junior mortgagee, the payment by him of said decree operated as an assignment of Seymour’s mortgage to him; Wheeler v. Willard, 44 Vt. 640 ; and as the decree was satisfied by such payment, the orators still have in equity a right of redemption in said premises.

The decree of the Court of Chancery is therefore reversed, and the cause remanded, with mandate directing that the amount due in equity to Martin upon Seymour’s decree and upon the mortgage to himself, after deducting therefrom the rents and profits of the mortgaged premises" while in Martin’s possession, bo ascertained ; and a decree be entered that the’ sum so found, due him, Martin, with costs of this suit, be paid by the orators by some day *326 to be fixed by, said court, and upon such payment that he, Martin, surrender the possession of said premises to the orators, free and clear of all incumbrances done or suffered by him ; and in default of such payment, that the bill, thenceforth, stand dismissed with costs.