James Phelps and others against Abigail Ellsworth and others

James Phelps and others against Abigail Ellsworth and others. WRIT of error. This was a petition in chancery brought to the superior court, by the honourable Oliver Ellsworth, deceased, stating that James Phelps and James Phelps, jun. being indebted to him, in the sum of 2,569 dollars and 49 cents, gave their note, payable the 1st of May, 1805, on interest, and conveyed, by deed of that dale, seven pieces of land, as collateral security; and on the 4th of March, ¡803, they became further indebted, in the sum of 1,000 dollars, payable at the same time with the former; and as collateral security for the 1,000 dollars, executed a deed of four other pieces of land, together with the same lands contained in the first mortgage : That the equity of redemption of James Phelfis, jun. had been attached;' and that of James Phelps., the eider, had been by him conveyed to others, who were made parties to the bill: that the money all remained due — praying for a foreclosure. Upon a bill of ft ¡ au by a nt¡'t tg* ¿.ee hoUiuig rtpa* laic n ' 'gag ⅞ hr ¿'.$~ tsDC t Ik cS, chancerv will iitecve a n ie« closure 5*| on the fudnie oí the moitga-gee, to pay doth debts, and will not make .-eparatc (ipe.cos ibr each debt. None of the respondents, except James Phelfis, (then called junior,) appeared. And upon inquiry, the court found the facts stated in the petition, to he true; and found due upon the two mortgages, 4.531 dollars, and decreed, that if the respondents failed to pay this sum ■within a limited time, they should oe foreclosed of their equity of redemption. The widow and children of the petitioner, and the administrators upon his estate, were made parties to the writ of error. All the plaintiffs in error, except James Phelfis, were nonsuited. The error assigned was, that all the lands contained in the last deed, was made subject to the payment of the debt, secured by the first. Ingersoll and Dwight, for the plaintiffs in error. These mortgages were made at different times, for different sums, and were entirely separate and distinct; and there should have been separate and distinct decrees relative to each of them, viz. that on the payment of 2,500 dollars, and interest, the mortgagee should release all the title he derived from the first conveyance; and on the payment of 1,600 dollars, he should release all the title lie derived from the second deed. Had the mortgagor petitioned to redeem the lands comprised in the second mortgage, without the other, he ought to have been, permitted to redeem them. There can, be no more connection between two separate contracts, by the same person, than between two contracts by different persons. The lands are each charged with its own burdens-, and the one ought not to be onerated with the debts of the ° _ other. The object of a court of chancery, as to mortgages, is to place the mortgagor, after the law day, in the same situation he was in before. Before the Saw day, James Phelfis might have paid the 1,000 dollars, and Interest, and the last mortgaged lands would haw. been bis own, unencumbered. Chancery will then permit him, upon the same terms, to effect the same thing. The most oí the cases in the books, where the court compelled a redemption of both mortgages, are cases where the security was deficient; as in Purefroy v. Purefroy, 1 Fern. 28, But to sanction tisis decree, is to adopt the whole system of tacking debts to encumbrances off real estate; for there is the same equity for a mortgagee, that his bond or note should be paid, as that ins other mortgages should be. But in this way, the law requiring deeds,, to be recorded would be of no effect; because, in cases of mortgages, the debt would not depend upon the original contract, but upon the state of accounts between. the parties, when the application is made. But however this may be, where the mortgagor petitions, the mortgagee cannot, upon his own application, enforce the redemption of both mortgages, or neither, and thus vary his own contract. Pozv. on Mort. 511 — 5 \7. He now asks, that the court will not permit the lands last mortgaged, to be free from the encumbrance upon the payment of principal aud interest. This is asking the court to place him in a better situation than he placed himself; because he is not willing to take, what before the law day expired he might have bten compelled to accept. But the language of the petition is, that he should have the principal and interest upon each contract. Gould and R. M. Sherman, for defendants in error. Natural justice requires that a mortgagor, whose estate is forfeited at law, should pay to the mortgagee all he owes him, before the latter should be compelled to give up the security he holds. And formerly chance' ry would not permit a redemption, until all moneys borrowed of the mortgagee, were paid. The rule now applies to cases only, where tlie loan is secured by mortgage. But as to mortgages, the rule has never been relaxed, and in justice should have retained its ancient force in all cases. Had the mortgagor made application to redeem, he must have redeemed both. Margrave Le Hooke, 2 Vern. 207. Pope v. Onslow, 2 Vern. 286. Reason v. Sacheverell, 1 Vern. 41. Jones v. Smith, 2 Ves. jun. 376. Although in some of these cases, it is said, that the mortgage or one of the mortgages is deficient in value, yet in none of them is it the principle of adjudication ; in several of them, it is not even suggested. Powell indeed intimates, that the court is less liberal to the mortgagee, when the application comes from him* self, but cites no authority in support of the remark, affecting this case. The case he states, is that of a mortgage and a bond debt; in such case, he says, if mortgagor petitions, he must pay the bond debt, as well as “mortgage, but if mortgagee is plaintiff, it seems (he says) that he can enforce payment of the mortgage debt only. If any such rule or difference exists, it applies only to those cases where an original equity is sought, as where an obligee prays for more than the penalty of a bond ; but not to cases like this, where the petitioner asks for no equity in his favour, but only that the mortgagor may exercise his equitable rights in a reasonable time. The fact that the first land was included in the second mortgage, shows, that the parties designed that the whole land should be security for each debt. But if a decree were made upon the principles contended for, or this decree reversed, it could be of no possible benefit to the mortgagor; for if he should pay the money due on one mortgage, and the mortgagee should refuse to reconvey, unless both debts were paid, the mortgagor must then apply to a court of chancery to compel a conveyance. Upon that application, he, being plaintiff, must, according to the principles laid down from Powell, first satisfy both debts, before he could gain the legal title to either of the estates. This decree then, only effects directly, what then would be done circuitously. [MAJORITY — By the Court.] By the Court. At law, both mortgages are forfeited; the mortgagee has a legal title to both, 't he only inquiry is, what is equitable between the parties. All agree, that the moi tgagor, on his petition, cannot redeem one mortgage without the other. The reason assigned is, that as his relief is in equity only, he shall do equity to obtain it. The principle guiding such decisions is that it is equitable he should redeem both, or neither; and surely it cannot vary the principle, and ought not to alter the rule of equity, between the parties, that one, or the other, applies for it, unless the situation of the party seeking relief, requires an extraordinary interposition of the court. This is the usual application, by the mortgagee, not seeking an original equity, but simply, that the court will limit the time, within which the mortgagor shall exercise his equitable rights. His equitable rights are, to redeem on paying all that is clue upon both mortgages. This principle extends to all mortgages existing between the same parties, whether they embrace the same land ⅛ part, as in this case, or are wholly distinct, and independent. And were the court to adopt a different rule, and separate these mortgages, by their decree, and limit the time of redemption for each, the mortgagee might refuse the money, and compel the mortgagor to seek relief. The court would then decree that, which we think equity requires should now be decreed. We perceive nothing erroneous in the record. Judgment affirmed.