Payne v. Hathaway

Citation3 Vt. 212
PartiesELIJAH PAYNE v. SHADRACH HATHAWAY
Decision Date01 January 1831
CourtVermont Supreme Court

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This was a suit in chancery, and was set down for a hearing at the present term on demurrer for want of equity, and want of proper parties, also on a plea of the statute of limitations filed by the respondent. The prominent allegations in the bill were, That on the 8th of October, 1803, Silas Hathaway was seized in fee of the lands described in the bill, lying in Swanton; and at the same time was justly indebted to Samuel Hitchcock and Abel Allis in the sum of thirty thousand dollars; that, on that day, Hitchcock and Allis attached the land; that, on the last Monday in August, 1805, they recovered a judgement in said action for $ 31,127,29, and took execution thereon on the ninth of September, 1805; that they levied on the lands, January 8th, 1806, and completed the levy on the 7th of February following, and recorded the execution on the 9th of the same month; that, on the 20th of September, 1803, Silas Hathaway mortgaged the same lands to Simeon Hathaway, for the sum of $ 2,000; that a bill of foreclosure had been filed to foreclose this mortgage, and a decree obtained, which would have expired on the 1st of January, 1807; that Silas Hathaway neglected to redeem till 30th day of December, 1806, when Hitchcock and Allis paid the redemption money to Simeon Hathaway, amounting to the sum of $ 2464,44, and gave notice to the tenants, and requested them to attorn to them, the said Hitchcock and Allis, and caused said mortgage deed to be discharged of record; that the plaintiff, and those for whom he claims advanced the money to Hitchcock and Allis, to enable them to redeem the mortgage; that on the 29th of December, 1806, Hitchcock and Allis executed their note to the plaintiff for the money advanced, and a mortgage deed of the same land to secure its repayment; that, after the service of the attachment, and after the judgement in favor of Hitchcock and Allis, viz. on the 12th of September, 1805, Silas Hathaway conveyed the lands to the defendant, Shadrach Hathaway, fraudulently to defeat the judgement; that on the same 12th of September, 1805, Shadrach Hathaway, the defendant, executed an accountable receipt for the deed, thereby promising to account for, or reconvey the lands, which was put on record November 23d, 1810; that, on the 21st of November, 1810, Silas Hathaway executed another deed of the same lands to Shadrach Hathaway, who now held said lands discharged from said mortgage deed; that the money due from Hitchcock and Allis to the plaintiff, and those for whom the plaintiff claims, was never repaid by Hitchcock and Allis; but they became bankrupt and were wholly unable to make the repayment; that on the 11th October, 1810, at the request of those for whom the plaintiff claimed, he conveyed the premises to John Curtis in trust, that he should sell the lands, and, at the time of sale, should secure by mortgage the respective claims of those, who had advanced the money to Hitchcock and Allis, and for whom the plaintiff now acted; and the deed was recorded 11th October, 1810; that defendant, Shadrach Hathaway, then was in possession, holding adversely to the plaintiff and those under whom he claimed, whereby the deed from plaintiff to Curtis was rendered void; that said Curtis, on the 7th April, 1815, became insolvent, and was then committed a prisoner to the common jail in St. Albans; that in that situation the defendant, knowing him to be utterly insolvent, and well knowing the trusts contained in the deed from the plaintiff to said Curtis, but intending to cheat and defraud the plaintiff, and those for whom he acted, on that day procured a deed from said Curtis to himself of the said land; that the plaintiff, on the 1st August, 1821, commenced sundry actions of ejectment for the recovery of said lands against the defendant, Shadrach Hathaway, and the tenants under him on the said lands, that the defendant set up as a defence in those suits, that the levy was void: also that plaintiff had parted with his title, by said deed to John Curtis, and that the same title was vested in him, the defendant, by said deed from said Curtis to him the said Shadrach Hathaway, which deeds the plaintiff alleges to be void by reason of the said adverse possession, and the non-fulfilment of the trusts and conditions in said deeds contained; that, if said deeds are not void, yet the defendant, by accepting the said deed from Curtis, had become bound in equity to fulfil said trusts, or to reconvey said lands to the orator. The bill prayed, that Shadrach Hathaway should be enjoined not to set up said matters in defence, nor to collect or receive any rents due on the lands; that a receiver be appointed; and that he be decreed to release to the orator his said title, or pay the amount and interest of the sums paid by Hitchcock and Allis for the redemption of Simeon Hathaway's mortgage, and pay the costs in the ejectments. After reading the papers, a question of practice was submitted to the Court, which party should go forward in argument. The Court decided that the defendant should go forward in support of his demurrer and plea.

Plea in bar overruled.

C. Adams, for demurrant.--If the orator has a legal title, his claim is good at law; and it is well settled that, when orator has an adequate remedy at law, the courts of chancery will not interfere.--Mitford, 111, 114; Cooper, 123, 124, 126; 3 Atk. 740, Parry v. Owen; 3 Ves. Jr. 4, Loker v. Rolle; 3 Ves. Jr. 343, Ryves v. Ryves. It is not stated, nor does it appear, that any claim of title by the orator was rendered ineffectual by any act of the defendant. The taking the deed from Silas Hathaway could not affect the orator's claim, if the proceedings under which he claims had been regular. The deeds of the orator to John Curtis, and from Curtis to the defendant, cannot be set up against any legal claim of orator. This point was expressly decided in Paine v. Webster et al. 1 Vt. 101. The broad question then arises, whether, if a creditor attempts to levy his execution upon the land of his debtor, and fails by his own fault, he has any relief in equity? We contend he has not.

The payment of the mortgage to Simeon Hathaway by Hitchcock and Allis, created no right in them independent of the levy. When Hitchcock and Allis levied their execution, they had a right to include the mortgage, and having taken land equal in value to the mortgage, it became a fund for its payment; for the application of which they were bound; and herein all equity is excluded. Their right to repayment of the mortgage money is not revived by the failure of title by their levy. If the payment was not made in the character of claimants of the mortgaged property, it was a voluntary payment, which creates no liability.--1 Term Rep. 20, Stokes v. Lewis; 8 Term Rep. 613, per Lord Kenyon in Child v. Morley; 1 Esp. Dig. 31, 176. Hitchcock and Allis cannot be considered as the assignees of Simeon Hathaway, by the payment of his mortgage. If they had taken a formal assignment from Simeon Hathaway no title thus acquired would have passed to the orator by their previous mortgage to him. The orator has no right to call on the defendant to answer, whether the deeds of orator to Curtis, and Curtis to defendants were fraudulent. 1. Because orator has shown no interest in the land. 2d. Because it would be unavailing inasmuch as the deeds are ineffectual against orator's claim, if he had any. 3d. Because defendant cannot be compelled to answer enquiries by which he may incur a forfeiture.--2 Ves. 243, Brownsword v. Edwards; 1 Ves. 246, East-India Co. v. Campbell; 1 Atk. 450, Earl of Suffolk v. Green et al.; 2 Atk. 392, Chauncey v. Tahourden; 3 Atk. 453, 457, Boteler v. Marmaduke. If the orator was considered as the assignee of Simeon Hathaway this bill would not entitle him to any relief. In that case the defendant would not be barred by the decree, as he was not a party to the bill. Orator would be compelled to pursue his claim on the original mortgage, and show that Simeon Hathaway had been damnified; and it would be competent for the defendant to show the note to Robinson, on account of which the mortgage was given to Simeon Hathaway, to have been paid by Silas Hathaway. Orator has no equitable claim independent of his title. It is not certain that orator's money went to pay off the mortgage, but, if it did, it cannot be contended, that a voluntary payment will create any claim. When a second mortgagee pays off a prior mortgage, he may hold on upon the estate. So when tenant for life pays an outstanding claim, it is said that a claim arises: but in these cases, the persons are in by virtue of a title. The bill is defective for want of proper parties. Silas Hathaway ought to have been joined. And if there ever was any interest in Hitchcock and Allis it now remains in them or their heirs. The orator is barred by the statute of limitations. He cannot claim any greater right, than if he had been assignee of Simeon Hathaway's mortgage; and, in that case, he would have been barred.--Mitford, 212; Cooper, 251; 3 P. W. 309, Wych v. East-India Co; 3 Atk. 225, Aggas v. Peckerill; 2 Atk. 395, Lacon v. Lacon; 3 Br. P. C. 305, Earl of Strafford v. Blakeway; 6 Brown C. Rep. 630.

C Marsh, and Bailey, for orator.--I. What can be more equitable than, that he, who holds the lands, should pay off the incumbrance; or, if he do not elect to pay the mortgage money, that he should surrender the title, which must have been...

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