Weyant v. Murphy

Paterson, J. The material facts of this case are as follows: One Segur, who was the owner of two tracts of land, which may be designated respectively as the El Dorado tract and the Sacramento tract, mortgaged them both to Mrs. Alice Scott, to secure the payment of sixteen thousand dollars. Subsequently Segur sold and conveyed the El Dorado tract to certain parties for eight thousand dollars. Of this sum, one thousand doMars only was paid in cash. The grantees agreed to pay the remaining seven thousand dollars to Mrs. Scott on account of the principal of said mortgage, which agreement was expressed in the conveyance. Subsequently the grantees conveyed the property to other parties upon like terms, viz., the second set of grantees paid the sum of one thousand dollars, and assumed the payment of seven thousand dollars of the principal of the Scott mortgage, and this agreement was expressed in the deed. This second set of grantees conveyed to the plaintiff by a deed which expressed a consideration of one thousand dollars, and contained the following clause: “Subject to [281]all mortgages now existing against said above-described land.” Neither the plaintiff nor any of his grantors ever paid the seven thousand dollars above mentioned, or any part thereof.

The Sacramento tract was sold and conveyed by Segur to the defendant, for the sum of eighteen thousand dollars. Of this sum, half was paid down, and the defendant agreed to pay the remaining nine thousand dollars to Mrs. Scott on account of the principal of her mortgage. This agreement was performed by the defendant. He paid Mrs. Scott the nine thousand dollars, with the accrued interest thereon, leaving due to her the seven thousand dollars, and accrued interest thereon, which had been assumed by the plaintiff’s grantors.

In this condition of affairs, Mrs. Scott commenced a suit to foreclose her mortgage for the balance due to her, joining both the parties here as defendants in such suit, and in due course a decree of foreclosure was entered, adjudging that there was due to the plaintiff, in said foreclosure suit, the sum of $8,756.54, and decreeing that the two tracts be sold to satisfy the same, by a receiver, who had been appointed by the court. But in view of the fact that the defendant here had paid such portion of the common burden as he had agreed to pay, and that the grantors of the plaintiff had not paid the portion which they had agreed to pay, and subject to which the plaintiff took his tract, the court in the foreclosure suit very properly decreed that the El Dorado tract be sold first. This was an adjudication that the burden of the Scott mortgage should rest primarily upon the tract of the plaintiff here.