Potter v. Crandall

¶1The mortgages of the widow, the complainant, and the other heirs of Daniel Potter, all cover the same identical premises-, the same farm. They all bear the same date, were executed and delivered simultaneously, and were for ' different portions of the purchase money of the same *122property. The contract of sale was joint, though the contracts to pay were several. There can be no doubt in equity, that these several mortgages can have no preference as among themselves, unless, perhaps, the widow might be deemed to be entitled to a preference. The complainant asks in his bill, that the premises may be sold, and he himself paid, and all the other defendants foreclosed. It is inequitable that, as to him, this prayer should be granted, as it may defeat the rights of others who have equal equities with himself. The other members of this family, it is true, are willing to have the premises sold if they can be paid their rateable proportions of the proceeds of the sale; but as to them, the defendant Crandall has had no day in court. He has had no opportunity of contesting the validity of their claims, and, consequently, this mode of disposing of the property cannot be adopted. A decree in favor of the complainant according to the prayer of his bill, would give him a preference over his mother and co-heirs—a preference which could not be remedied under such a decree, by proceedings for a distribution of the surplus. I could not grant such a decree even if this class of defendants should stipulate with the complainant to permit him to take such decree upon condition of dividing with them rateably the proceeds of the sale. This would be indirectly depriving the defendant Crandall of the credit on one-third of the purchase money until the widow’s death, for which credit he had stipulated on the purchase. It would have this effect, particularly if, as is suggested, the mortgaged premises cannot with propriety be sold in parcels. And the defendant Crandell has had no opportunity of making a defence against these *123claims of his co-defendants. The proper course for the complainant to pursue is, to ask his mother and 1 A co-heirs to join with him in foreclosing all these mortgages in one bill—if any refuse, he can then make such as refuse, defendants. He should set forth all the circumstances in his bill, of the simultaneous execution of the mortgages ; and then the court can make a decree which will satisfactorily dispose of the rights of all the parties, whether some of them are reluctant to proceed or not. But under the prayer of the present bill, I can give no decree which will not produce inequitable results. The defendant Crandall, however, has no merits. It was his duty to have paid the installments upon the mortgages, as they became due. I shall therefore dismiss the complainant’s bill, without costs as to Crandall, but with costs as to the other defendants who have appeared, but without prejudice to the right of the complainant to file a new bill for the same matter.