Lake v. Tebbitts

Ross, J.: The complaint charges, that, on the 10th of April, 1874, the plaintiff sold and conveyed to the defendant Hannah B. Tebbitts certain real property in the complaint described, in consideration of the payment by the grantee of the sum of one dollar, and of the amount of two certain mortgages then existing upon said real property, one in favor of Milo Sawyer, and the other in favor of R. C. Brown; that the grantee after-wards paid the Sawyer mortgage, and paid the interest on the Brown mortgage to December 21st, 1876, leaving the principal sum of the latter mortgage, together with interest thereon from December 21st, 1876, unpaid; that on the 9th of October, 1874, Hannah B. Tebbetts executed a deed of trust to the defendants Burr, Shotwell, and the Savings and Loan Society, for a portion of the said premises, which deed was accepted [483]with knowledge that Hannah B. Tebbitts had not paid all of the purchase-money; that on the 21st of March, 187G, the holder of the Brown mortgage commenced suit to foreclose it, which suit was pending at the time of the institution of the present action. The prayer is, that the plaintiff have judgment against Hannah B. Tebbitts for the amount remaining due upon the Brown mortgage; and “ that, in case the said Hannah B. Tebbitts shall not pay the said judgment, then the premises in this complaint first above mentioned (the premises sold and conveyed by the plaintiff) be sold, and so much of the proceeds as may be necessary be applied to the payment of the judgment so to be rendered.” The Court below gave the plaintiff judgment against Hannah B. Tebbitts for the amount remaining due upon the Brown mortgage, and further decreed a vendor’s lien therefor in plaintiff’s favor on the premises described in her deed of conveyance, and directed a sale of said premises, or so much thereof as should be necessary to pay the amount of the judgment, costs, etc.

It is stated in the brief of counsel for respondent (plaintiff in the Court below), and was so stated at the argument, that the Brown mortgage included other land of the plaintiff than that embraced in her deed to Hannah B. Tebbitts, which had been lost to her by reason of the latter’s failure to make the payment in accordance with her contract; and it is upon this that the argument is based, that in equity, the plaintiff is entitled to a lien upon the premises sold by her. But, as will be seen from the statement already made, the complaint does not allege any such fact. On the contrary, it .appears therefrom that both mortgages were upon the same land, sold by the plaintiff to Hannah B. Tebbitts, and were existing liens thereon at the time of the sale. One was discharged by payment; the other not having been paid, suit was commenced for its foreclosure. Even if it be assumed that it could be known in advance that there would remain a judgment over against the plaintiff after the sale of the mortgaged premises, there is nothing in the complaint to show or indicate that the property would not bring enough to satisfy the mortgage debt. Whether, if the facts stated in the plaintiff’s brief had been stated in her complaint, she would have been entitled to the relief awarded