Carpenter v. Gleason

• Decision Date: 22 June 1886
• Citation: 4 A. 706,58 Vt. 244
• Parties: CARPENTER and others v. GLEASON and others.
• Court: Vermont Supreme Court

4 A. 706

58 Vt. 244

CARPENTER and others

v. GLEASON and others.¹

Supreme Court of Vermont.

June 22, 1886.

Bill in chancery to foreclose a mortgage. Heard on bill, answer, and testimony, March term, 1885, Washington county; Powers, chancellor. Decree for the orators.

In January, 1875, one Washburn sold the premises to one Stevens, and took a mortgage back. They were incumbered by a prior mortgage. May 30, 1875, Washburn transferred some of the second mortgage notes to the orators, and the rest to the defendant. The orators afterwards purchased the first mortgage, and brought a bill to foreclose the same at the September term of Washington county court. In January, 1876, said Stevens conveyed, by quitclaim deed, the premises to defendant Gleason, who, at the next term of court, was made a party defendant. Defendant Gleason filed an answer in that suit, and claimed that, as the orators owned the first mortgage and a part of the second mortgage, the first mortgage ought not to be paid by him alone, but that it should be apportioned among the owners of the second mortgage notes in the proportion that they owned. The orators obtained a decree in that suit. The defendant's answer in that suit was, in part:

"And this defendant says that the first mortgage, now attempted to be foreclosed by the petitioners, is, as this defendant understands, an incumbrance upon said premises, which is necessary to be paid by the owners of the second mortgage,—the petitioners being interested therein, as well as this defendant, and in the proportion that they own, to that owned by this defendant; * * * and this defendant insists that said petitioners should also be made parties defendant the same as this defendant is; and that if said petitioners will not agree to a proportion to be paid by each of said owners of the second mortgage, that the honorable court will apportion the same."

This bill was brought to foreclose the second mortgage, and alleged that the orator owned the first three notes secured by that mortgage. The other facts are sufficiently stated in the opinion of the court.

Pitkin & Huse, for defendants.

In the former suit the question decided was whether the orators, owning the first and a part of the second mortgage, could enforce the entire first mortgage in a foreclosure suit upon that mortgage only. In this suit the question is as to the effect of a redemption from the first mortgage by the other part owner of the second, when the orators came to claim under their part of the second mortgage. It is obvious that the questions are different, and that the one here raised was not passed upon in the former suit. If the defendant, when he redeemed the premises from foreclosure upon the first mortgage, had held part of the second mortgage only, and had not taken the quitclaim of the equity of redemption, it is clear that by so redeeming he would have been subrogated to the place of a first mortgage until the other part owners of the second mortgage should pay their share of what he paid to redeem. Hubbard v. Ascutney Milldam Co., 20 Vt. 402; Wheeler v. Willard, 44 Vt. 640; Sheld. Subr. §§ 169, 172, 173, 175. Does the fact that the defendant took a quitclaim deed of the equity of redemption prevent such subrogation? That depends upon his intent and purpose in taking it; and, as it affirmatively appears that he took it for the benefit of all the owners of second mortgage,—the orators as well as himself,—and not to acquire any title or advantage for himself alone, he is so subrogated, and the orators are not entitled to a decree. Bullard v. Leach, 27 Vt. 491; Chandler v. Dyer, 37 Vt. 345; Wheeler v. Willard, 44 Vt. 640; Walker v. King, Id. 601; S. C. 45 Vt. 525; Willson v. Burton, 52 Vt. 395; Devereaux v. Fairbanks, Id. 587; Guernsey v. Kenball, 55 Vt. 201.

T. J. Deavitt and J. J. Deavitt, for orators.

The law issues raised in this case were raised and determined in the former case between the same parties, respecting the same subject-matter, and should be treated as a final settlement of such law questions. The defendant has no equitable ground against the orators. He occupies the place in this proceeding of one called in the books a volunteer or a meddler. Downer v. Wilson, 33 Vt. 1. When Mr. Gleason purchased the equity of redemption of the mortgagors, taking the mortgagors' title and possession, his interest in the incumbrances became merged and extinguished as a part of the consideration, as much so as it would had the mortgagor paid Mr. Gleason's interest off in cash. And Mr. Gleason took the estate charged with the payment of the incumbrances upon it; and when he elected to pay the decree, and did pay it, it became extinguished, the same as if the mortgagor had paid it. Guernsey...