Hamlin Converse vs. Samuel Cook et al., 8 Vt. 164

The opinion of the court was delivered by Williams, Ch. J. The plaintiff claims title by virtue of a mortgage deed from Farmery Hemmingway, dated in December 1829. Farmery Hemmingway, in September 1830, conveyed the' same premises to Jonas Hemmingway, and by a regular chain of conveyances, the title of Jonas Hemmingway came to the defendants. The defendants attempted to set up a prior title derived to them from the representatives of Vashni Hemmingway, to whom-Farmery Hemmingway had mortgaged the premises in May 1814,-on which mortgage a decree of foreclosure had been obtained in-January 1826.

When Jonas Hemmingway purchased of Far-mery in September 1830. he agreed to pay both of the mortgages before mentioned, and retained a part of the purchase money for that purpose. The county court decided that, under the circumstances, neither Jonas Hemmingway nor the defendants, who claimed from him, could set up the assignment executed by the representatives of Vashni to them, to defeat the plaintiff.

We are of opinion that the views of the county court asj expressed in the charge of the judge were correct.- On the first question raised here, as to the admission of the evidence, that Farmery took property to Massachusetts for the purpose of paying the mortgage to Vashni, we think the evidence, in connexion with the declarations of Jonas Hemmingway and the executors of Vashni, was admissible as tending to show a-payment of the mortgage after the decree of foreclosure had been made and expired.- If payments were made by the mortgagor and accepted by the mortgagee after the decree of foreclosure, the estate of the representatives of Vashni would not be considered as absolute under the decree, but remained, as before the decree, conditional.

The title of Farmery was therefore not gone from him wholly, when he mortgaged to the plaintiff in 1829, but he had an equity of redemption in the premises in question. After Farmery executed the deed of mortgage to the plaintiff, he had an estate in the premises, subject to both mortgages. His grantee, Jonas Hemmingway, stood in the same relation in equity, the debtor of the representatives of Vashni Hemmingway and of the plaintiff. Neither Farmery nor Jonas could purchase in one of the mortgages and keep it alive to the prejudice of the other, but a purchase could only operate as a payment.

The counsel for the defendants have a mistaken view of the situation of Jonas Hemmingway or the defendants, by considering them as mortgagees without notice, purchasing in a precedent incumbrance to strengthen their title. The only case, where one purchasing under a mortgagor has been permitted to purchase in a prior mortgage and deeree under it, is that of a first mortgagee, who has purchased of the mortgagor the equity of redemption. In that case, he has been permitted to claim by virtue of his mortgage against a second mortgagee ; and we are not aware that the cases have gone any further.

This view of the case would alone be decisive of the rights of the parties to this suit.

But when we further take into consideration, that Jonas Hemmingway, when he purchased of Farmery, agreed to pay the mortgage to the plaintiff, and retained a part of the purchase money for that purpose, it shows manifestly the intention of the parties, that the mortgage to Vashni should be paid, and would prevent Jonas and all claiming under him, from setting up that mortgage in any way to the prejudice of the plaintiff; and although this agreement may have been procured by the fraud of Farmery, and he may have been liable therefor, yet it would not change the relation in which Jonas stood to the plaintiff, viz ; that of a mortgagor in possession, liable both by law and by express agreement to pay the lien which the plaintiff held on the land by his mortgage deed.

The case of Brown vs. Stead, 5 Simons R. in chancery 535, is a very conclusive authority on this point. The county court were correct in treating the assignment from the representatives of Vashni Hem-mingway to the defendants as an extinguishment of the mortgage.

The other question in relation to the admission of the testimony of Edward Hemmingway, (who, it appears, was one of the executors of the will of Vashni,) as to the fairness of the decree, became wholly immaterial, when it appeared that, by accepting payment after the decree, and admitting a less sum to be due than the amount stated, the executors waived the benefit of that decree, and held their title as a defeasable one, upon the performance of the condition expressed in the mortgage. The judgment of the county court must therefore be affirmed.