William Randell vs. Samuel T. Mallett, 14 Me. 51

After a continuance, nisi, the opinion of the Court was drawn up by Weston C. J. The defendant, having purchased of Nathaniel Jngersoll six thousand acres of land, in the township granted to Williams College, in common and undivided, mortgaged the same to that corporation. He became the owner also, by purchase from other persons, of fifteen hundred acres more in common and undivided, in the same township. He afterwards sold to settlers fourteen lots, of one hundred acres each, by metes and bounds.

These were afterwards drawn to the defendant’s right in a division of the lands, for the purpose of quieting the settlers, holding under him, in their titles. The lien, created by the mortgage to the College, although at the time of its execution extending over the whole township, with certain exceptions not affecting the present case, would follow and attach to the defendant’s right, when severed. Williams College v. Mallet, 3 Fairf. 398; Crosby v. Allyn, 5 Greenl. 453.

If there was set off to the defendant a greater quantity of land, than he mortgaged to the College, their lien would attach to his land when divided, in the proportion that the quantity mortgaged to them might bear to the whole quantity, of which he was owner; and in that proportion they would be interested in common with him. It was not in his power, by a sale of part of the land by metes and bounds, to extinguish their lien in the part thus sold, without their consent.

The fact that there would be a sufficient quantity left for their security, or as many acres as he had mortgaged, would not withdraw the incumbrance from the land sold. Although embracing but a small

part in quantity, it might constitute a great

part in value. If the defendant had subsequently sold the remaining lands by metes and bounds, and the purchasers had extinguished the mortgage, they would doubtless have had a right to call upon those, who first bought for contribution. The defendant had no right to charge one portion of the land with the incumbrance, and to exempt another from the burthen, without the consent of the incumbrancer.

All the owners in the township may have had an interest, in getting on- the requisite number of settlers provided for in the original grant; but how this was to be effected would be matter of arrangement, among the proprietors. The defendant, by selling to the number of settlers assigned to him, would not be entitled to receive all the purchase money, to the prejudice of die mortgagee under him. He could not give an unincumbered title, without obtaining a release from the College of this part, which he has not done.

We are, therefore, very clear, that the defendant’s covenant to the plaintiff, that the land he purchased was free from incumbrance, was broken, of which the mortgage tp the College was evidence; and that he is entitled to nominal damages, although he had not extinguished the incumbrance. The lien of the College was in no degree affected, by tire attachment and sale of the equity of redemption at the suit of Solomon JET. Chandler, or by the terms of the deed, from tire officer to the purchaser of that equity.

The evidence of these transactions were therefore properly excluded, as they could not avail the defendant by way of defence. Defendant defaulted.