Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

the doctrine of a notice of a prior unregistered deed in full force; and this is the true and sound distinction which prevails in the United States, and I presume that the English law of tacking is with us very generally exploded. Liens are to be paid according to the order of time in which they respectively attached. This is the policy and meaning of our registry acts, and, consequently, all incumbrancers are to be made parties to a bill to foreclose, that their claims may be chargeable in due order. There is no natural equity in tacking, and when it supersedes a prior incumbrance, it works manifest injustice. By acquiring a still more antecedent incumbrance, the junior party acquires, by substitution, the rights of the first incumbrancer over the purchased security, and he justly acquires nothing more. The doctrine of tacking is founded on the assumption of a principle which is *179 not true in point of fact; for, as between *A., whose deed is honestly acquired, and recorded to-day, and B., whose deed is with equal honesty acquired, and recorded to-morrow, the equities upon the estate are not equal. He who has been fairly prior in point of time, has the better equity, for he is prior in point of right.c

House of Lords, in an Irish case, it was declared, that if the deed posterior in date and execution be first registered, even with notice of the other deed, it has priority both in law and equity; but this does not apply to the case of a fraudulent priority of registry.

Grant v. U. S. Bank, 1 Caines' Cases in Error, 112, Feb. 1804. This was the earliest case that I am aware of in this country, destroying the system of tacking. In that case I had the satisfaction of hearing that profound civilian, as well as illustrious statesman, General Hamilton, make a masterly attack upon the doctrine, which he insisted was founded upon a system of artificial reasoning, and encouraged fraud. See, also, 11 Serg. & Rawle, 223. 3 Pick. 50. 6 Munf. 560.

Haines v. Beach, 3 Johns. Ch. Rep. 459.

• In case of conflicting equities, precedency of time gives the advantage in right. 1 Bibb, 523. 1 Blackford's Ind. Rep. 91. With respect to priorities in the case of contribution and liens, it may be here observed, that a judgment creditor is not entitled to go against the land of a subsequent purchaser, so long as there is land of the debtor remaining unsold, and he is entitled to resort to the land of the purchaser, to the extent only of that part of his debt which remains unsatisfied after the debtor's estate has been exhausted. So, if a debtor sells part of his land charged with a judgment, and dies seised of the residue, his heirs are bound to satisfy the judgment, so far as the assets go, and they are not entitled to any contribution from the purchaser, for "the heir sits in the seat of his ancestor," and the assets that descend to him are first to be charged. But if there be several co-heirs,

With the abolition of the English system of tacking, we are relieved from a multitude of refined distinctions, which have given intricacy to this peculiar branch of equity jurisprudence. The doctrine of notice is also of very extensive application throughout the law of mortgage, and is very greatly surcharged with cases abounding in refinements. It is, indeed, difficult to define, with precision, the rules which regulate implied or constructive notice, for they depend upon the infinitely varied circumstances of each case. The general doctrine is, that whatever puts a party upon an inquiry. amounts, in judgment of law, to notice, provided the inquiry becomes a duty, as in the case of purchasers and creditors, and would lead to the knowledge of the requisite fact, by the exercise of ordinary diligence and understanding.

So, notice

On the

and the judgment creditor collects the debt from a part of the inheritance allotted to one of them, such heir is entitled to contribution from his co-heirs. other hand, where there is no equality, there is no contribution, as if a person seised of three acres of land, charged with a judgment, sells one acre to A., the two remaining acres are first chargeable in equity with the payment of the debt; and if he should sell another acre to B., the remaining acre in his hands, or in those of his heir, is chargeable in the first instance with the judgment debt as against B., as well as against A., and if that prove insufficient, then the acre sold to B. ought to supply the deficiency in preference to the acre sold to A., for when B. purchased, he took the land chargeable with the debt in the hands of A., in preference to the land already sold to A. Between purchasers in succession at different times, of different parts of the estate of the judgment debtor, there is no contribution, for there is no equality of right between them. Sir William Herbert's Case, 3 Co. 11. b. Clowes v. Dickenson, 5 Johns. Ch. Rep. 235. Conrad v. Harrison, 3 Leigh's Rep. 532. See, also, 6 Ohio Rep. 227. 6 Paige's Rep. 35. 525. 10 Serg. & Rawle, 455. S. P. Shannon v. Marselis, Saxton's N. J. Ch. Rep. 413. 421, and Cowden's Estate, 1 Barr's Penn. Rep. 274–277. S. P. (1)

A purchaser of lands from an incorporated company is chargeable with notice of all the restrictions upon its power to hold and convey lands contained in its charter. Merritt v. Lambert, 1 Hoffman's Ch. Rep. 166.

(1) In accordance with this principle, it has been held, that if the mortgagee, with notice of the rights of subsequent purchasers, releases a part of the premises primarily liable for the payment of his debt, he cannot enforce his lien against the residue, without deducting the value of the part released. Stuyvesant v. Hall, 2 Barb. Ch. R. 151. But the mere recording of a subsequent deed or mortgage is not notice to the prior mortgagee. Ibid. King v. McVicker, 8 Sandf. Ch. Rep. 192.

Though the principle of resorting to the mortgaged premises sold subsequently to the mortgage, in the inverse order of their alienation, is firmly established in New-York, it has been questioned in some recent English cases, and denied in the case of Dickey v. Thompson, 8 B. Mon. R. 312. 2 Story's Eq. Jurisprudence, sec. 1233. a. Barnes v. Racksten, 1 Younge & Coll. N. R. 401.

of a deed is notice of its contents, and notice to an agent is notice to his principal. A purchaser with notice, from a purchaser without notice, even in the case of an endorsement of a note, can protect himself under the first purchaser, who was duly authorized to sell; and a purchaser without notice, from a purchaser with notice, is equally protected, for he stands perfectly innocent.a

There is, also, this further rule on the subject, that the purchaser of an estate in the possession of tenants, is chargeable with notice of the extent of their interests as tenants; for having knowledge of the tenancy, he is bound to inform himself of the conditions of the lease. The general rule is, that possession of land is notice to a purchaser of the possessor's title.b (1) The effect of notice, on the equity and validity of

Hascall v. Whitmore, 19 Maine Rep. 102. Smith v. Hiscock, 14 id. 449. Griffith v. Griffith, 9 Paige Rep. 315. Bracken v. Miller, 4 Watts & Serg. 102. Sweet v. Southcote, 2 Bro. 66. Bumpus v. Platner, 1 Johns. Ch. Rep. 219. Godfrey v. Disbrow, 1 Walker's Mich. Ch. Rep. 260. To constitute a purchaser without notice, it is not sufficient that the contract should be made without notice, but that the purchase money should be paid before notice. And though a purchaser may be held as a trustee for the cestui que trust, yet if he believed the title to be good, he is entitled to the incumbrances from which he relieved the land, and to the permanent improvements which he has made, and to his advances for the support of the wife and children, and which are to be set off against the profits for which he is chargeable; and the incumbrances and improvements are a charge on the land, unless absorbed by the residue of the profits. Wormley v. Wormley, 1 Brockenbrough, 330. S. C. 8 Wheaton, 421. The doctrine of constructive notice was fully examined in the case of Griffith v. Griffith, 1 Hoffman's Ch. Rep. 153, and in the case of Brush v. Ware, 15 Peters' U. S. Rep. 93; and it is of two kinds, that which arises from testimony, and that which results from a record.

Daniels v. Davison, 16 Vesey, 249. Chesterman v. Gardner, 5 Johnson's Ch. 29. Dyer v. Martin, 4 Scammon Rep. 147. But the constructive notice, arising from tenancy, does not extend beyond the tenant's title, or apply to the title of the lessor under whom the tenant holds. Lord Eldon, in Attorney-General v. Backhouse, 17 Vesey, 293. Sugden on Vendors and Purchasers, ch. 17, p. 745, 746, 7th edit. Our registry acts are designed to protect purchasers against latent equities; the doctrine in the English law of constructive notice of the title of the lessee, or party in the possession, is not favoured in the American courts. Scott v. Gallagher, 14 Serg. & Rawle, 333. M'Mechan v. Griffing, 3 Pick. 149. Hewes v. Wiswell, 8 Greenleaf, 94. Flagg v. Mann, 2 Sumner, 556, 557. Where the possessor of land

(1) Bailey v. Richardson, 15 Eng. L. & E. R. 218. Where a person holds and is in possession of certain rights in a tract of land, under a recorded deed, and has other rights by an un. recorded deed, his possession will be notice only of his claim under the deed which is recorded. Great Falls Co. v. Worster, 15 N. H. R. 455.

claims, is very strong. A purchaser of an equitable interest, standing out in a trustee, and who neglects to inform the trustee of it, will be postponed to a subsequent purchaser of the same interest who makes inquiries of the trustee, and has no *knowledge of the prior assignment, and *180 gives due notice of his purchase. So, a purchaser of real estate cannot hold against a prior equitable title, if he have notice of the equity before the payment of the purchase money, or the execution of the deed.

has caused a registry of a particular title, the purchaser need not look beyond it. But apart from any registry, possession ought to be sufficient to put purchaser on inquiry; and Ch J. Gibson, in Woods v. Farmere, 7 Watts, 382, with his usually strong and stringent logic, justifies the doctrine of implied notice in such cases.

* Dearle v. Hall, 3 Russell, 1. Jewett v. Palmer, 7 Johns. Ch. Rep. 65. Frost v. Beekman, 1 ibid. 288. Gallion v. M'Caslin, 1 Blackford's Ind. Rep. 91. Gouverneur v. Lynch, 2 Paige, 300. Grimstone v. Carter, 3 ibid. 421. Boone v. Chiles, 10 Peters' U. S. Rep. 177. Meux v. Maltby, 2 Swanst. Rep. 281. Allen v. Anthony, i Merivale, 282. Merritt v. Lambert, 1 Hoffman's Ch. Rep. 166. With respect to the liability of purchasers, for the right application of the purchase money, it was declared as a general rule, by the Supreme Court of the United States, in Potter v. Gardner, 12 Wheaton, 498, that the person who pays the purchase money to the person authorized to sell, was not bound to look to its application, whether the lands sold be charged in the hands of an heir or devisee with the payment of debts, or the lands be devised to a trustee for the payment of debts, unless the money be misapplied with his co-operation. The principle of this decision appears to be most consistent with the common sense and practice of mankind, and to be reasonable and just, and a contrary doctrine would lead to abuse and imposition upon purchasers. (1) The law concerning notice, express and implied, is very amply discussed by Mr. Coventry, in his notes to Powell on Mortgages, vol. ii. c. 14. 561-662; and the American editor, Mr. Rand, has, with a thorough accuracy, collected all the cases and decisions in this country appertaining to the subject. The immense body of English learning with which Mr. Coventry has enriched every part of the original work of Powell, is not only uncommon, but very extraordinary. There never were two editors who have been more searching, and complete, and gigantic in their labours. The work has become a mere appendage to the notes, and the large collections of the American editor, piled upon the vastly more voluminous commentaries of the English editor, have unitedly overwhelmed the text, and rendered it somewhat difficult for the reader to know, without considerable attention, upon what ground he stands.

Conati imponere pelio ossam

atque ossæ frondosum involvere olympum.

I acknowledge my very great obligations to those editors for the assistance I have received from their valuable labours; but I cannot help thinking, that Mr.

(1) Stroughill v. Anstey, 12 Eng. L. & E. R., 356.

IV. Of foreclosure.

(1.) Of strict foreclosure.

The equity of redemption which exists in the mortgagor, after default in payment, may be barred or foreclosed, *181 if the *mortgagor continues in default after due notice

to redeem. The ancient practice was, by bill in chancery, to procure a decree for a strict foreclosure of the right to redeem, by which means the lands became the absolute property of the mortgagee. This is the English practice to this day, though sometimes the mortgagee will pray for, and obtain, a decree for the sale of the mortgaged premises, under the direction of an officer of the court, and the proceeds of the sale will, in that case, be applied towards the discharge of incumbrances according to priority. The latter practice is evidently the most beneficial to the mortgagor, as well as the most reasonable and accurate disposition of the pledge. It prevails in New-York, Maryland, Virginia, South Carolina, Tennessee, Kentucky, Indiana, and probably in several other states. But in the New-England states, the practice of a strict foreclosure would seem to prevail, and the creditor

Coventry would have better accommodated the profession, if he had written an original treatise on the subject, and we should then, probably, have had, what is now wanting in the present work, unity of plan, adaptation of parts, and harmonious proportion. Several of his essays in the notes, as, for instance, those relating to receivers; equitable assets; voluntary settlements; the wife's equity; when debts, as between the representatives of the deceased, are to be charged upon the real, and when on the personal estate; interest and usury, &c., have no very close application to mortgages. Mr. Coote's "Treatise on the Law of Mortgage" is neat, succinct and accurate, and free from several of the objections which have been sug gested.

a

Mundey v. Mundey, 1 Ves. & Beame, 223.

b Johns. Ch. Rep. passim. New-York Revised Statutes, vol. ii. 191. sec. 151. In Lansing v. Goelet, 9 Cowen's Rep. 346, it was decided, that a decree of foreclosure and sale, and a decree of sale without any express decree of foreclosure, were equally a complete bar of the equity of redemption. Nelson v. Carrington, 4 Munf. 332. Downing v. Palmateer, 1 Monroe, 66. Humes v. Shelby, 1 Tenn. Rep. 79. Hurd v. James, ibid. 201. Rodgers v. Jones, 1 M'Cord's Ch. Rep. 221. Paunell v. Farmers' Bank, 7 Harr. & Johns. 202. David v. Grahame, 2 Harr. & Gill, 94. Act of Indiana, 1840. In Ohio the mortgagee is entitled to a decree of foreclosure, where two thirds of the value of the mortgaged lands do not exceed the amount of the debt, and he may insist on a sale. 5 Hammond's Rep. 554. In Tennessee, the mortgagor has two years, under an act of 1820, to redeem after confirmation of the master's sale, under a decree of foreclosure. Henderson v. Lowry, 5 Yerger's Rep. 248.

« ΠροηγούμενηΣυνέχεια »