Barr v. Patrick

Rotheook, J.

í vendor conveyance: lieu. — I. The foregoing statement has'been made with no little difficulty. Th.e facts are complicated, and they are 2de more so by numerous mistakes, clerical an^ otherwise, in appellant’s abstract. There not being an entire agreement between the parties as to the correctness of the abstracts, we have made our statement largely from the transcript. Before proceeding to an examination of the rights of the parties, we may observe that upon the oral argument counsel for appellee'withdrew all claim by reason of his alleged taxtitle. That defense is, therefore, out of the case.

When Hugh Barr sold and conveyed the land in controversy to Hallett, the Purdy judgment was regarded by the parties as part of the purchase money, and by the acceptance of the deed there was an express undertaking upon the part of Hallett, that he would pay the judgment. The same may be said of the deed from Hallett to Brooks. It is true the judgment is not so explicitly described, but it is sufficiently referred to to indicate that there is a judgment, which was rendered upon the loth day of December, 1866. The fact that there appears to be a mistake in the name of Purdy, and the the name Ban is used instead, is, we think, a matter of no consequence. It Joes not appear that there ivas any other judgment of that date which was a lien upon the land, and an examination of the records, for the true consideration of the title ívould necessarily disclose to the examiner that the Purdy judgment was intended. That Brooks understood what judgment was intended is evident from the fact that while he was the owner of *707 the land and liable for the payment of the judgment, $ 100 was paid thereon by him as testified to by Purdy, and the record shows this payment was made on the 2éth day of December, 1869. Hugh Barr had the right to enforce the payment of this judgment as against Hailett, and also as against Brooks, by subjecting the land to its payment. As between him and Hailett the judgment was charged specifically upon the land, so that if Barr had paid it he conlcl have enforced it against the land. Of this Brooks was charged with notice, and took the land subject to the same condition and charged with the same burden, because he derived title through the deed from Barr to Hailett. For the same reason, the mortgage to Pond was subject to the judgment, and when Patrick purchased the mortgage, and foreclosed and bid in the property, he did so subject to the judgment. He must be presumed to have bid that much less. It was Hugh Barr’s right all the while, in case lie was forced to pay, to have the claim made out of the land, because he expressly reserved and provided for such payment to be made, by his grantee, and out of the purchase money. Having made this provision in his deed to Ilallett, it affected all the other parties claiming through said deed. In this view it is immaterial whether the deed from Hailett to Brooks Gorrectly or mistakenly described the judgment. Where one who is liable for a mortgage conveys the land subject to the payment thereof by his grantee, he is entitled, upon paying the debt himself, to be subrogated and enforce the mortgage. Halsey v. Reed, 9 Page, éi6; Ferris v. Grmoforcl, 2 Denio, 595 . The same rule must apply when a conveyance is made subject to the payment of a judgment lien, by the grantee. Thomas Barr, the plaintiff, paid the judgment because, as the grantee of the other lands, he was compelled to do so for his own protection, and in equity he is entitled to be subrogated to all the rights of Hugh Barr. It is urged by counsel for appellee that Thomas 'Barr paid the judgment, and it was canceled of record more than a year before defendant took the title to the land by the sheriff’s deed, and the lien of the judgment was extinguished. That fact, we think, is immaterial. The defendant purchased the land at the *708 foreclosure sale on the 21st day of March, 1874, and plaintiff paid the judgment on the 28th of the same month. But we think the rights and obligations of the parties would not be different if the judgment had 'been paid after the sheriffs sale, because Thomas Barr was obliged to protect himself, and he immediately, upon payment being made, acquired the right of subrogation. In conclusion upon this point we may say that the equities of the plaintiff are stronger, because it appears that defendant bad actual notice of the judgment, and as the agent of Woods purchased it from Purdy.

2 _._. adjudication. II. In our opinion tbe rights of the plaintiff were not adjudicated by the dissolution of the injunction. Patrick was not a party to the action, and he stands in an entii>ely different position from Woods, the assignee of the Purdy judgment. Woods could not properly be enjoined, and put to the expense of another levy, unless it was made to appear that he committed a wrong in levying upon the laxid of the plaintiff It was his right (especially in the absence of any actual knowledge of the specific charges upon the land in controversy) to levy upon any land upon which the judgment was a lien. Woods was entitled to collect his judgment by the ordinary process of the law, and could not be compelled' to litigate questions which were of no concern to him, hut which could only be determined in an action between the parties hereto.

The plaintiff is entitled to a decree subjecting the land to the payment of the amount paid by him upon tbe judgment, and interest thereon at six per cent from the time such payment was made, and to this amount should be added $126.49 paid by the plaintiff in redemption of the land from a tax sale, and interest at six per cent thereon from September 3d, 1875, tbe time at which said redemption was made. The defendant purchased the land at tax sale, and was the holder of the certificate of purchase, and the money paid in redemption was paid directly to his use. The cause will be reversed' and remanded for. a decree in the court below in accord with this opinion, or a decree will be entered in this court at the option of tbe appellant.

Reversed.