Bellows Falls Trust Co. v. Gibbs

534 A.2d 210, 148 Vt. 633, 1987 Vt. LEXIS 518

Opinion

27 V.S.A. § 141(b) provides that “[w]hen a mortgagee takes an accruing mortgage, the only, debt which shall be secured thereby or become a lien upon the property described therein shall be the debt described in the mortgage and existing at the time of its execution, and any subsequent direct indebtedness of the mortgagor to such mortgagee; . . . .” (Emphasis added). The subsequent indebtedness here was incurred by only one of the mortgagors, see 1 V.S.A. § 175, and thus could not become a lien upon the nonconsenting mortgagor’s interest in the property.

In Vermont, tenants by the entirety are viewed as being individually vested, under a legal fiction, with title to the whole estate. Preston v. Chabot, 138 Vt. 170, 174, 412 A.2d 930, 932 (1980). Neither spouse has a share which can be disposed of or encumbered without the joinder of the other spouse. Id. Therefore, we conclude that the note executed on July 10, 1980 was not secured by either Mr. Gibbs’ or Mrs. Gibbs’ interest in the property at issue.

Reversed.