Mahagan v. Mead
| Decision Date | 12 March 1886 |
| Citation | 3 A. 919,63 N.H. 570 |
| Parties | MAHAGAN v. MEAD and others. WILLEY v. SAME. |
| Court | New Hampshire Supreme Court |
Bill in equity, to determine the order in which parcels of mortgaged land are applicable in satisfaction of the mortgage debt. June 21, 1866, Quimby, seized of land called the "Vail Tract," consisting of lots A, B, C, D, E, F, G, H, and I, mortgaged the whole to the defendants Mead & Co., and May 7, 1868, conveyed to them, with warranty, lot A. November 22, 1869, she conveyed the entire tract, including lot A, to McIntire. October 5, 1870, Mclntire conveyed lot B to Taylor; December 28, 1870, lot C to Cunningham; and January 3, 1871, lot D to Ayer. July 12, 1871, Mead & Co. quitclaimed lot A to Mclntire. July 24, 1871, Mclntire conveyed A and E to Quimby; and August 28, 1871, to Taylor, under a particular description by metes and hounds, a tract embracing lots F, G, and H, but not I. The deed contains the following clause: "Intending to convey all the land deeded by E. Y. Quimby * * * not otherwise deeded." June 18, 1872, Quimby quitclaimed A and E to Houston. October 29, 1872, Houston quitclaimed the same lots to Taylor, and on the same day Taylor conveyed F to Sleeper. December 19, 1872, Taylor conveyed G to Rand, and quitclaimed, January 29, 1873, A and E to Halloran, to whom he also conveyed the same lots, with warranty, August 14, 1873. Rand conveyed lot G to the plaintiff Mahagan, August 12, 1873; and Sleeper conveyed lot F to the plaintiff Willey, September 20, 1882. All the conveyances not otherwise stated were with warranty, and were seasonably recorded.
Bingham & Mitchell, for plaintiffs.
S. C. Eastman, for defendants.
CARPENTER J. If a mortgagor makes successive sales of portions of the mortgaged land to different persons, equity requires that the part retained by him be first subjected to the payment of the mortgage debt, and, if it is insufficient, that the parcels sold be applied in the inverse order of the sales. Brown v. Simons, 44 N. H. 475. The doctrine is not confined to the case of alienations by the mortgagor; it is equally applicable where conveyances of separate parcels to several persons are made with warranty by his grantee. Guion v. Knapp, 6 Paige, 35.
July 12, 1871, Mead & Co. held the unincumbered title in fee to lot A, and their mortgage upon the remainder of the Vail tract. Mahngan v. Mead, 63 N. H. 132. By their quitclaim of that date to Mclntire, by Mclntire's warranty of July 24, 1871, to Quimby, and by the other intermediate deeds, the...
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