Mahagan v. Mead

3 A. 919, 63 N.H. 570

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1885
• Status: Published

Opinion

Carpenter, J.

If a mortgagor makes successive sales of portions of the mortgaged land to different persons, equity requires that the part retained by him be first subjected to the payment of the mortgage debt, and if it is insufficient, that the parcels sold be applied in the inverse order of the sales. Brown v. Simons, 44 N. H. 475. The doctrine is not confined to the case of alienations by the mortgagor; it is equally applicable where conveyances of sep arate parcels to several persons are made with warranty by his grantee. Guion v. Knapp, 6 Paige Ch. 35.

July 12, 1871, Mead & Co. held the unincumbered title in fee to lot A, and their mortgage upon the remainder of the Vail tract. Mahagan v. Mead [ante, 132]. By their quitclaim of that date to Mclntire by Mclntire’s warranty of July 24,1871, to Quimby, and by the other intermediate deeds, the same unincumbered fee in A passed to Halloran, who now holds it. The lot did not in Quimby’s hands become subjected to the mortgage from the operation of which it had been released. Mead & Co. are estopped by the covenants in their deed of quitclaim from claiming it under their mortgage, as well against Quimby and her grantees as against McIntire. Loomis v. Bedel, 11 N. H. 74, 86. The estoppel created by Quimby’s warranty of the Vail tract to Mclntire is set at large in respect to lots A and E by the latter’s reconveyance of those lots to her with warranty. Carpenter v. Thompson, 3 N. H. 204. The case stands as if Quimby had conveyed to Mclntire A and E by quitclaim and the remainder of the Vail tract with warranty, and Mclntire had in turn quitclaimed to her those lots.

Lot E, when reconveyed to Quimby, was placed in the same position as if she had never parted with the title. In her hands it was first liable for the satisfaction of the mortgage debt, and Halloran holds it subject to that burden. Mclntire last conveyed F, G, and H to Taylor by deed of August 28, 1871. If lot I did not pass by this deed, it is chargeable with the mortgage debt next after E. Taylor first conveyed lot F to Sleeper, and then lot G to Rand. He still holds the title to H and also to lot I, if it passed to him from Mclntire; if it did, the two lots are to be applied equally upon the debt next after E. It will not be necessary to determine whether the title to I is now in Mclntire or in Taylor, unless E, H, and I are more than sufficient to satisfy the mortgage debt; and there may be evidence upon the question which is not disclosed by the case. Should they prove insufficient, the other lots are chargeable in the order G, F, L), C, and B.

Case discharged.

Smith, J., did not sit: the others concurred.