The opinion of the court was delivered by
Isham, J.
We are satisfied that this bill was properly dismissed by the chancellor. The deed of Gardner Briggs, and the payment of the purchase money by Fatima Goodenough, vested in her, as her separate property, the land described in the deed. The application of five hundred dollars due to her from the estate of her father, was clearly a payment of that character. The same may be said of the note of two hundred dollars, signed by her and [683] her husband, which was secured by mortgage on the premises, and was given to Briggs, for the balance due on the purchase of the land. At the time it was given, she, in equity, stood as the principal, and her husband as her surety. But their relation, as signers of that note, was changed by the arrangement made September 16,184S, which was effected through the intervention of Samuel Dutton, as trustee. By that arrangement, a life estate to five-eighths of this land was conveyed to Fatima Goodenough, and an estate in fee to three-eighths of the land, and the reversion of the five-eighths was conveyed to her husband, Gaius R. Goodenough. For this property, he assumed the payment of that note. From that time, he became the principal, and she stood as his surety. For the payment of that note, her separate property, as well as that which had been conveyed to her husband, was mortgaged, and held as security by the creditor; but as between them, the charge rested vpon the property alone, which had been conveyed to him.
The plaintiffs, in taking the interest of Gaius R. Goodenough, in the land conveyed to him, on their executions, could only take the same, subject to the incumbrance of the mortgage to Briggs, and treat that incumbrance as resting upon that portion of these premises. This is emphatically true, if they had knowledge of the arrangement between Fatima and her husband, and that the conveyance of the premises, on which their executions were levied, was made to him for that purpose; for it is a general principle, that when one takes the title of land with notice of a prior equity, he holds the same subject to that equity. That Samuel Dutton, of the firm of Dutton & Clark, had actual knowledge of that arrangement, clearly appears in the case. He was the trustee through whom the arrangement was made. He, therefore, knew that the Briggs’ mortgage was for Gaius R. to pay; that the property which he and the other creditors had taken, was conveyed to Gaius R. for that purpose, and that Fatima and her property was thereby to be relieved from any further liability on that mortgage debt. This notice to Dutton, was notice to Clark, his partner. Barney v. Curren, 1 D. Chip. 315. If the other creditors have such a joint interest with Dutton & Clark, as will enable them to join in the prosecution of this bill, it would on the same principle equally seem to follow, that notice to one should be treated as notice to all; certainly, they are not permitted in this suit to deny such a joint [684] interest; for if their interests are distinct and several, they cannot join, and this suit, on either ground, is defeated. Comp. Stat. 208 § 3. Aside from this consideration, they had the means of obtaining notice of all the facts in the case, they were put on inquiry, and that is equivalent to notice, and will charge them with the consequences of actual knowledge. McDaniels v. Flower Brook Man. Co., 22 Vt. 274. Harper v. Rives, Freeman’s Ch. R. 323.
If these plaintiffs are chargeable with notice of the equity resting upon the land on which their levies were made, there is no propriety in saying, that because their levies have proved defective, they can sustain this bill, and compel Fatima Goodenough to repay the money which they had advanced, for the purpose of removing the incumbrance on the land on which they had levied their executions. That portion of these premises, redeemed by that payment, did not belong to her; she had no interest in them, except to indemnify her as surety; neither did they come into her hands as a consequence of that payment. But on the contrary, when that incumbrance was removed, and the levies proved defective, the title of the land unincumbered was in Gaius R. Good-enough. He was the person directly benefitted by that payment of the plaintiffs, as the money was applied in payment of a debt which he was primarily obligated to pay. If an obligation rests upon any one to repay the plaintiffs the money advanced by them, it would seem to rest upon him, rather than'upon the defendant.
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The opinion of the court was delivered by
Isham, J.
We are satisfied that this bill was properly dismissed by the chancellor. The deed of Gardner Briggs, and the payment of the purchase money by Fatima Goodenough, vested in her, as her separate property, the land described in the deed. The application of five hundred dollars due to her from the estate of her father, was clearly a payment of that character. The same may be said of the note of two hundred dollars, signed by her and [683] her husband, which was secured by mortgage on the premises, and was given to Briggs, for the balance due on the purchase of the land. At the time it was given, she, in equity, stood as the principal, and her husband as her surety. But their relation, as signers of that note, was changed by the arrangement made September 16,184S, which was effected through the intervention of Samuel Dutton, as trustee. By that arrangement, a life estate to five-eighths of this land was conveyed to Fatima Goodenough, and an estate in fee to three-eighths of the land, and the reversion of the five-eighths was conveyed to her husband, Gaius R. Goodenough. For this property, he assumed the payment of that note. From that time, he became the principal, and she stood as his surety. For the payment of that note, her separate property, as well as that which had been conveyed to her husband, was mortgaged, and held as security by the creditor; but as between them, the charge rested vpon the property alone, which had been conveyed to him.
The plaintiffs, in taking the interest of Gaius R. Goodenough, in the land conveyed to him, on their executions, could only take the same, subject to the incumbrance of the mortgage to Briggs, and treat that incumbrance as resting upon that portion of these premises. This is emphatically true, if they had knowledge of the arrangement between Fatima and her husband, and that the conveyance of the premises, on which their executions were levied, was made to him for that purpose; for it is a general principle, that when one takes the title of land with notice of a prior equity, he holds the same subject to that equity. That Samuel Dutton, of the firm of Dutton & Clark, had actual knowledge of that arrangement, clearly appears in the case. He was the trustee through whom the arrangement was made. He, therefore, knew that the Briggs’ mortgage was for Gaius R. to pay; that the property which he and the other creditors had taken, was conveyed to Gaius R. for that purpose, and that Fatima and her property was thereby to be relieved from any further liability on that mortgage debt. This notice to Dutton, was notice to Clark, his partner. Barney v. Curren, 1 D. Chip. 315. If the other creditors have such a joint interest with Dutton & Clark, as will enable them to join in the prosecution of this bill, it would on the same principle equally seem to follow, that notice to one should be treated as notice to all; certainly, they are not permitted in this suit to deny such a joint [684] interest; for if their interests are distinct and several, they cannot join, and this suit, on either ground, is defeated. Comp. Stat. 208 § 3. Aside from this consideration, they had the means of obtaining notice of all the facts in the case, they were put on inquiry, and that is equivalent to notice, and will charge them with the consequences of actual knowledge. McDaniels v. Flower Brook Man. Co., 22 Vt. 274. Harper v. Rives, Freeman’s Ch. R. 323.
If these plaintiffs are chargeable with notice of the equity resting upon the land on which their levies were made, there is no propriety in saying, that because their levies have proved defective, they can sustain this bill, and compel Fatima Goodenough to repay the money which they had advanced, for the purpose of removing the incumbrance on the land on which they had levied their executions. That portion of these premises, redeemed by that payment, did not belong to her; she had no interest in them, except to indemnify her as surety; neither did they come into her hands as a consequence of that payment. But on the contrary, when that incumbrance was removed, and the levies proved defective, the title of the land unincumbered was in Gaius R. Good-enough. He was the person directly benefitted by that payment of the plaintiffs, as the money was applied in payment of a debt which he was primarily obligated to pay. If an obligation rests upon any one to repay the plaintiffs the money advanced by them, it would seem to rest upon him, rather than'upon the defendant.
Fatima Goodenough and her husband were divorced in February, 1850. The equity of redemption on the mortgage given to Briggs, expired under the decree of the chancellor, on the 28th of April, in the same year. The neglect of Gaius R. Goodenough to pay the amount of that decree caused an entire failux’e of the consideration for which the property was conveyed to hiña, and imposed upon Fatima Goodenough, the necessity of making the payment of $165,30, to discharge her liability as surety on that note, and to relieve her property from forfeiture under that decree. The balance due on that decree was paid by these plaintiffs as creditors of Gaius R. to redeem the property levied upon by their executions. On the payment of that money by Fatima, after her divorce, she became a creditor at law of Gaius R. Goodenough, and was at liberty to adopt either of two courses to obtain the re-payment of the money she had advanced. In the first place, she had [685] the right, by subrogation, to the remedies and securities in the hands of Briggs, as mortgagee, to compel the payment of the amount from Gaius R. Goodenough, or from those claiming under him. Whatever rights the mortgagee had to compel payment of the debt to him, she too is entitled to obtain the re-payment of the same she has advanced. In the second place, the payment having been after her divorce, she had the right to prosecute Gaius R. for money paid, and levy her execution upon his property for its satisfaction. If she had adopted the first course, it is clear, that she could have enforced'a foreclosure, not only against Gaius R. but all these plaintiffs, upon all the property included in the deed of Samuel Dutton; even if the levies of these plaintiffs had been good. In that event, they probably might have redeemed by paying the whole mortgage debt, but they would have had no claim against Fatima, on her property; for as to her, they have only paid what should have been paid by Gaius R. or those claiming under him. The rights, and equity of Fatima Goodenough, are none the less, because the levies of their executions have proved defective. That circumstance, whatever may be its effect as to Gaius R., can have no effect upon Fatima Goodenough. In commencing her suit at law and levying her execution upon a portion of the premises belonging to Gaius R. Goodenough, she has taken only a part of that to which she would have been entitled by subrogation, and her legal and equitable right to hold the same in satisfaction for the money she has advanced, is as great in one case as in the other. The truth of the case is really this. After FatimaGoodenough had paid that money in discharge of that incumbrance, she stood as the creditor of Gaius R. Goodenough to that amount. These, plaintiffs having paid their money for the same purpose, it is possible, in equity at least, that they can be treated as creditors also; for in each case the money has been applied in payment of a debt which was for Gaius R. to pay. Under such circumstances, Fatima had a right to secure her debt on property belonging to Gaius R.; and having done so, she is not only the first in diligence, but the first in right.
There is another circumstance in this case affecting the equity of the plaintiffs’ claim. The execution of Fatima Goodenough, was levied only upon the land lying in the town of Brattleboro, leaving all that portion of the premises lying in Guilford, which was included in the deed of Samuel Dutton, still in the hands of Gaius R. [686] Goodenough. This land it appears from the deed of Gaius R. to Benjamin Stevens, and from the bill, has been conveyed for the benefit of these plaintiffs; and they now hold the same for that purpose. There is no propriety in saying, that they may hold the premises conveyed to them by that deed, and also claim from Fatima Good-enough, the re-payment of the money they respectively advanced. Whether the plaintiffs have a claim in equity for the re-payment of that money, against Gaius R. Goodenough, we are not called upon to decide. We think they have no such claim against the defendant.
The decree of the chancellor is affirmed.