Collins v. Adams's Executors

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

Joseph Adams, the defendants’ testator, held a mortgage against Lucius Collins and Louisa S. Collins. The orator furnished Lucius Collins with money to take up one of the notes secured by the mortgage ; and he did so, informing Adams that it was the orator’s money, and directing him not to cancel the note, as the orator was going to hold it. To this information Adams made no reply. The defendants, as executors, have foreclosed the mortgage and taken possession of the premises. The orator now seeks to participate in the mortgage security. The case was referred to a master, and is now heard upon his report. It appears from the report that at the time the note was taken up by said Lucius, nothing was said about the mortgage security, and that said Lucius subsequently treated the mortgage as one for five thousand dollars, the amount remaining due said Adams ; and the master is unable to find that Adams ever understood that the transaction was other than a payment of said note.

Upon these facts the court think that the transaction amounted to a payment of the note and not a purchase of it. This disposition of the facts renders it unnecessary for the court to pass upon the legal questions arising in case the court had found that the transaction was a sale of the note, instead of a payment.

No question is made in this court upon the admissibility of the testimony of Lucius Collins, mentioned in the master’s report.

The orator claims the right to redeem the premises from the defendants’ mortgage, as he was not a party to the foreclosure suit in favor of the defendants against Lucius Collins and wife. The orator, if he had had any known interest in the premises subsequent to the Adams mortgage, should properly have been made a party defendant in the foreclosure proceedings. If he was not so made a defendant, his right of Redemption would remain unaffected by the decree. But there is one reason why this claim of the orator cannot be granted. The bill in this case is not brought *435 for that purpose — no such issue is made by the pleadings; the first reference to it is in the brief of the orator’s solicitor; and to permit it, would be a violation of all well known rules of pleading, and require, as Davis, J., says in Porter et al. v. Bank of Rutland et al., 19 Vt. 403 , “ to overleap principles of chancery practice everywhere recognized, and in their nature most safe and salutary.” The right to redeem, if any exists in the orator, must be sought by a bill for that purpose.

The decree of the chancellor dismissing the bill is affirmed, and cause remanded.