Mickle v. Rambo

1 N.J. Eq. 501

• Court: New Jersey Court of Chancery
• Decided: January 15, 1832
• Status: Published

Opinion

The ChaNcellor.

It is submitted to the court to direct the disposition of the money, and this must depend on the operation to be given to the release.

Mickle’s mortgage covered the whole property, including both lots. Shinn’s mortgage covered the first lot only. If the controversy was between these two mortgagees, on general principles, and independently of any release, Shinn would have a right to compel the satisfaction of Mickle’s mortgage out of the second lot, if sufficient to satisfy it; and if not, to have the proceeds of the lot appropriated to that purpose, as far as they would go. Nor would the release affect the rights of Shinn unless he assented to it, for the value of the property thus released would be ordered to be deducted fiom Mickle’s mortgage.

But the controversy is between other parties; neither Shinn, nor his assignee, Cook, claim any special rights.

Rambo claims under Wood, who stood at the time he gave the mortgage to Rambo, and made the assignment of his property to him, as the purchaser of the tavern-house and lot, subject to the two mortgages to Mickle and Shinn. If as such purchaser, he had sought to redeem that lot, he would have had to pay the mortgage to Shinn, and also a proportion of Mickle’s mortgage, according to the relative value of the two lots. ITc could have compelled the second lot to pay its proportion only, according to its value, and could have had no right in equity to throw the whole burden of the mortgage on that part of the property.

Such was the right of Wood. Rambo claims under him, and stands in his place. And Mickle having released his interest in the second lot, the proportion of his mortgage which that lot was liable to pay, must be deducted from the amount now due him by the report of the master. This proportion is ascertained to be the one-seventh part.

There is no evidence to show that Shinn was consenting to the release, and therefore his rights, or those of his assignees, are not affected by it.

I do not perceive that the case is varied by the fact that Mar-maduke Wood, in 1819, after his purchase, engaged to pay Mickle’s bond. This does not destroy the claim of Mickle on his mortgage. It is doubtful from the instrument itself, whether it was intended for the benefit of Mickle or Woodward. If for Mickle, it was adding the personal security of the purchaser to that of the mortgagor. If for Woodward, it was in the nature of an indemnity. Taken either way, Mickle’s claim on his mortgage is not affected by it.

Let the one-seventh part of Mickle’s mortgage be deducted, and the balance be satisfied out of the fund, together with costs, and let the residue be applied to the succeeding incumbrances in their order.