Wells v. Tucker

[In Chancery.] Two Mortgages on the same Land. Redemption. Payment. Purchase of Note. JSusband. Witness. 1. When one purchases land incumbered with two mortgages, each on an undivided half, and assumes and agrees to pay both as part of the purchase money, he cannot redeem the one without redeeming the other. By force of the purchaser’s agreement, as to him and all under him, the two mortgages are consolidated into one, the burden of each resting on the whole; and both must be redeemed. 2. Facts, q. v., found by a master, held to prove a payment instead of a purchase of a note. 3. Witness. Husband. When a husband is made a party defendant with others in a bill brought by his wife to redeem, on the ground that she has a homestead right in the premises, he is not a witness for her.

Bill to redeem. Heard on bill, answers, and master’s report, March Term, 1884, Washington Ctounty. Powers, Chancellor, decreed that the bill be dismissed. The oratrix, Eleanor C. Wells, was the wife of the defendant, Hénry C. Wells, and Susan L. Wells was his mother. It appeared from the report, that the defendant, C. W. Tucker, in 1874, conveyed a farm, subject to two mortgages, to the defendant, H. C. Wells. Said Tucker gave one of said mortgages on an undivided half of said farm to his mother, Elvira D. Tucker, to secure to her a life support, and also three $500 notes; and at the same time executed the other mortgage on the other undivided half of said farm to his two sisters — Ann Genet Lane and Carrie L. Tucker— to secure $2,500. H. C. Wells went into possession of the farm soon after it was deeded to him, and, as part of the consideration, he paid Elvira D. $1,500 in full discharge of her life support so secured. The notes were payable “ on or before” certain dates at the option of the maker. Wells, by reason of the depreciation in real estate, had determined to pay only one of the two mortgages; namely, the one securing the life support. The master found: “ And as further part of said consideration and purchase money the said Henry C. Wells assumed and agreed to pay all of the said notes secured by the said two mortgages, and to save the said Clarendon W. Tucker harmless therefrom, as set forth in said warranty deed, to wit: “ ‘ There is a mortgage on the premises hereby conveyed, situated in Calais, of $1,250, specified in notes given Carrie L. Tucker, and $1,250 in notes given payable to Ann Genet Lane, and also $1,500 in notes given payable to Elvira D. Tucker. Said notes were all signed by me, the said Clarendon W. Tucker, and the payment of secured by said mortgage agreeably to the tenor of said notes. And the said Henry C. Wells assumes the payment of said notes agreeably to their tenor, and to save the said C. W. Tucker harmless therefrom.’ And there was no other or different agreement of H. C. Wells to pay Tucker’s notes except this provision in H. C. Wells’ deed. ‘ ‘ I find that as between said Clarendon W. Tucker and said Henry C. Wells the trade for the said real estate in Calais was all one trade, and that the assumption of the payment of said mortgage notes* secured on the farm was all one assumption to pay the notes and a guaranty to save said Clarendon W. Tucker harmless from the payment of any and all of them.” May 1, 1881, H. C. Wells conveyed by quit-claim deed the farm to his mother. As to whether the note was paid or purchased: “ That about the 9th day of May, 1878, the said H. C. Wells, taking $30 that he borrowed of one Celestina Eddy and $470 of his mother’s money, called on Elvira D. Tucker, and offered to let her have the money on said note, telling her that the $470 belonged to his mother, and that he wanted to take it up for his mother to hold, and to keep as an investment. The said Elvira D. declined to take the money and did not want to let the note go, when Wells told her that the note was payable ‘ on or before,’ and he ‘ had a right to pay it and take it up at any time, and do what he pleased with it,’ and told her the interest would stop if she did not take the money.” * -i= * “I do not find that H. C. Wells asked to purchase this note; but the words used were, ‘ pay the money on it, and take it up.’ But I do find that she refused to sell the note, or to part with it, until he told her he had a right to ‘ pay and take it up at any time,’ and if she refused the money, it would stop the interest. Then she took it (after consulting Warner), and delivered him (Wells) the note.” * * * “I find that H. C. Wells * * * took advantage of the provision that the note might be paid ‘ on or before,’ and that she would not have taken the money and given up the note, if it had not been for this provision in it.” * * * “I find that some time after (three or four weeks), said Susan L. went to said Elvira D., after taking advice upon the subject, with said note, and requested her to endorse on the note the following words: ‘Please pay the within note to Mrs. Susan L. Wells,’ and sign her name to it, which she did, on the bottom of the note, on its inside, and said Susan L. again carried it away. Nothing was paid or taken for making this endorsement.” * * * “ I further find that said Susan L. acted in good faith in this matter, and that she came with H. C. Wells that day as far as Miss Eddy’s (her relative’s) house, and that she had previously made an arrangement with H. C. Wells, at his suggestion, to put this money into said note, and to hold it as a note, and the mortgage security on the farm to that extent. I find that she so understood this transaction, and intended to have it so, and was told by H. C. Wells that it would be a safe transaction or way to invest her money, and that she relied on the mortgage security. ” The defendant, H. C. Wells, was “ offered as a witness generally ” to prove the allegations in the bill, both for his wife and mother. Susan L. was a bona fide holder of the note and mortgage to that extent, and should be subrogated to the rights of Mrs. Tucker. A court of equity will uphold a mortgage for the benefit of a party who has advanced money upon it honestly, and when there is no other relief. Susan L. had -.no right or interest in the premises when she paid the note. It was a voluntary payment that did not bind the land or defendant Tucker; but her remedy was only on her son. 1 Jones Mort. ss. 663, 858, 805, 881; Dickenson v. Williams, 129 Mass. 182; 3 Pom. Eq. Juris, p. 191, s. 1206; Downer v. Wilson, 33 Yt. 1; Collins v. Adams’s Ex. 53 Yt. 433.