Engle v. Haines

5 N.J. Eq. 186

• Court: New Jersey Court of Chancery
• Decided: December 15, 1845
• Status: Published

Opinion

The Chancellor;

Under the testimony in this cause, the twenty-four acre tract is first chargeable, to the extent of $500 and the interest due'on it from the date of the conveyance from Abraham Haines to Barclay Haines. If a mortgagor,-subsequently to the mortgage, sells and conveys a part of the mortgaged premises, an equity arises in favor of the purchaser, to have that part of the mortgaged premises which remains in the mortgagor first- sold for or towards the payment of the mortgage ; but if such subsequent purchaser agrees with the mortgagor that the part he buys shall be subject to the mortgage, and that the amount due on the mortgage shall be a part of the Consideration for the portion he buys, equity will not interpose to protect him, by subjecting the part of the mortgaged, premises remaining in the mortgagor to be first sold. A subsequent purchaser of such portion from the grantee of the mortgagor, with notice of the facts, has no better equity- against the mortgagor than- the first purchaser.

J cannot, under the circumstances, direct the portion remaining in the mortgagor-to be first-sold.-