Opinion
12-20-1889
AYERS v. STALEY et al
W. H. Morrow, for complainant. J. G. Shipman, for defendants.
The complainant, Ayers, as administrator, etc., of Aaron Howell, deceased, filed his bill to foreclose a mortgage against the defendants, Mary Staley and others.
W. H. Morrow, for complainant. J. G. Shipman, for defendants.
BIRD, V. C. Wilson conveyed to Andrew Vough a tract of land, in part payment of which the latter gave a mortgage for $7,300. At the time of Vough's death there were $805 due upon the mortgage. Vough made his last will, giving to each of his daughters, Mary and Elizabeth, the interest of one-fourth of two-thirds of his estate; directing his executor to invest the same; providing that, if either of said daughters "should die without heirs, then that her portion was to be paid to his sons, John and Joseph," but, in case either of them should "leave heirs," then her portion was to be divided between such heirs. Mary married George W. Staley, by whom she has had two children, who are still living. Said George became the owner of the said tract of land purchased by the said Andrew Vough of Wilson. Upon the settlement of the estate of the said Andrew Vough,the amount to be invested for the benefit of Mary was $2,337. To secure this sum, the executor loaned it to the said George, who, together with his wife, the said Mary, executed a mortgage upon the said tract of land so purchased of Wilson by said Vough. In 1880, George died. At the time of his death he occupied the principal dwelling on the farm, while his son, the said Alexander, occupied the tenant house and farmed the said farm, upon some terms agreed upon between himself and his father. At the time of the father's death the whole amount of the last-named mortgage, principal and interest, remained unpaid, and also $805 upon the said Wilson mortgage. While this was the situation, Mary, the legatee, and her children, "if they survived her, also legatees, taking the principal, the said children being the heirs at law of the said George," joined in the execution of a mortgage to Aaron Howell, the complainant's intestate, to secure a loan of $2,500. This is an ordinary mortgage, in and by which all the right, title, and interest of the said mortgagors in the said lands were conveyed to the said Howell.
The claim upon the part of the complainant is that this conveyance by way of mortgage to the intestate, by the persons entitled to the principal and interest of the prior mortgage, places the mortgage given to the intestate in a position of priority to the mortgage given by said George W. Staley to the executor of Vough, to secure the said $2,337. That is, the complainant insists that they convey, not only the interest in the said lands, by virtue of the said mortgage given by the said George to secure the said legacy, but also the mortgage; and this notwithstanding the contingency resulting from the death of the said Alexander and Mary before their mother. The executor resists this view, and claims that by virtue of the said mortgage, and the power conferred upon him by said will, and the trust thereby created, he is entitled to the whole of the principal money due upon said mortgage. I think that the testimony elicited by the complainant himself most clearly shows that it was in no wise the intention of the parties to convey or take any right, title, or interest, either in the said mortgage given by said George, or in said lands, because of said mortgage of complainant. I refer to the testimony establishing the fact that the complainant absolutely refused to make said loan upon the security of the mortgage offered until the executor of said Vough indorsed on said bond the whole amount of said interest, which had been unpaid for several years. The interest was so indorsed, and the complainant then made the loan. Evidently, he would not have insisted upon a partial payment of this bond and mortgage being acknowledged if the agreement had been that such bond and mortgage should be included in his security; and it should be noticed that since then at least two years' interest had been indorsed on said bond by the executor, because of which the complainant makes no objection. These things are manifestly inconsistent with the claim that he is entitled to any benefits by virtue of the said mortgage; and I think the attitude of the complainant is rendered further inconsistent when he urges that the court should declare the whole amount of interest which has accrued upon the Staley mortgage satisfied, because Mrs. Staley and her children have had possession of the mortgaged premises. Most certainly, if Ms insistment be the true one, they would have no right to receive any part of the interest or principal until his mortgage of $2,500 was satisfied.
The next important question is whether or not, under the circumstances of this case, the mortgage in the hands of the executor of Andrew Vough should be charged with the rents and profits or not. The executor to whom the mortgage was executed was not in possession of the lands covered by the mortgage, but the legatees and centuis que trustent were. Shall they be required to account for the value of the premises to the extent of the interest accruing upon the mortgage, and the mortgage be charged therewith, the same as though the executor himself had been in possession under the mortgage? As the case stands, it seems difficult to reach an affirmative conclusion, notwithstanding the mortgage was given to the executor to secure a fund which belonged to the legatees. The executor was not in possession; nor can it be said that the widow and her children had the possession for him, or in his behalf. The widow joined in the mortgage to the executor; but upon the death of her husband she must be regarded as having the possession as widow until the contrary appears, for at the time of his death they occupied the mansion-house upon the premises, the son fanning the farm, and occupying a tenant-house upon the premises. Under the case of Spinning v. Spinning, 5 Atl. Rep. 278, the widow was under no obligations to discharge any in cumbrances resting upon the lands, but could hold them, and appropriate all the profits to her own use, until her dower was assigned according to law. There is no proof to show that she sustained any other relations to the premises, or any of the parties to this suit, except that of widow. The children of the mortgagor stand in the same relation to the premises that the mortgagor himself did. They were his heirs at law, and enjoy his rights. The mortgagor could only be called to answer for the amount due upon the bond, but could not be called upon to account for the rents or profits; and there is nothing in the case which places his children, as heirs at law, under any other or greater obligations. It does not appear that they agreed to take the place of the executor, and account for the rents and profits as he would have been obliged to do, had he been in possession. Nor does it appear that they, or either of them, entered into any agreement with the executor or the widow to discharge the interest to which the widow was entitled. Therefore,if it can be said that the widow was not in possession as dowress, but had surrendered her possession to her children, the claim that they should account for the rents and profits is clearly without foundation; for in no sense did they hold under the mortgagee, but by inheritance from their father, the mortgagor.
But it is said that the son, as tenant, provided his mother with some of the produce of the farm, as flour and corn, to a very limited extent, and that this is evidence that she looked to him, and to the produce of the farm, for her interest accruing from the bond and mortgage. The only proof is that she did receive some flour and some corn, but upon what account has not been established. She had a right to call her son to account for her interest in the land as dowress, as well as to call the executor to account for her interest upon the legacy secured by the mortgage. In the absence of direct proof, if we call to our mind the familiar presumption of the law, we are obliged to say that, so far as she called her son to an account, it was to satisfy her claim against him for her interest in dower, because that was the weaker security.
The complainant also urges that he has an equitable claim upon the said land to the extent of the said $805, which should be paid to him before any part of the interest or principal upon the mortgage held by the executor is paid, because so much of the said $2,500 was used to discharge the balance remaining due upon the Wilson mortgage. I can discover no grounds which entitle the complainant to this claim of equitable subrogation. The whole amount of the $2,500 was received by the son, Alexander, who used it in discharging debts of his own, and this debt or lien against the premises so mortgaged. The fact that he discharged the said Wilson mortgage in full was to that extent an advantage to the complainant's intestate.
I think the principal amount due upon the said mortgage given to the executor Vough, and the interest from the 1st day of April, 1883, are prior to the complainant's mortgage. I will so advise.