majority">Rotce, Ch.

delivered the opinion of the Court. The-court recognize the doctrine of equity that when a charge or burthen rests upon distinct funds or portions of property, and h third person becómes interested in one of them, he has a right to throw the burthen upon the other fund or estate, if the interests of the incumbrancer are not thereby impaired; or upbn discharging the incumbrance, to have an assignment of the prior securities ; or to have the burthen apportioned upon the several parts óf the property charged, so that his share may be preserved to him on discharging a just proportion of the general incum-brance. It is sufficiently evident that the first inode of relief is. not applicable to a case of this description, since the court cannot justly deprive a mortgagee of his security upon the whole of the mortgaged premises. We can only regulate his manner of holding the security and enforcing payment. It is also said by the orator that the.second mode of relief is not tobe applied here, because the mortgagee, subsequently-to the orator’s purchase, has released a part of the mortgaged premises ; and therefore that the orator is entitled to an apportionment. We think however, that either of the latter modes may be properly decreed on this occasion. We arb to look at the equitable situation of the property at the time of the orator’s purchase. At that time Chit-tenden must be considered as under obligation tb release to Bdfbey or his grantee that part of the Hubbell farm lying east of the roadj, and his security was upon die-remaining- estate only. This, is the estate by which assignment o-r apportionment must be made;. To hold a different doctrine would be to punish the mortgagee for the exercise of that benevolence by which he was induced to relinquish a part of his--security.

As the orator was probably influenced to make the purchase by *32the situation in which he .stood a? hail for Barney, he appears in a better character^than that'of a mere speculator or volunteer. He is therefore to have that choice between assignment and apportionment, which under other circumstances would more properly rest with Chittenden. The orator will be permitted either to pay to Chittenden tire amount of his debt, and take a conveyance of all the property now hold-en by the mortgage, or to pay such proportion of the debt as the value of the orator’s purchase bears to that of all the estate holden in security: — otherwise a common decree of foreclosure in favor of Chittenden to take effect, and in either event a decree passes against Barney. To enable the orator to avail himself of the alternative here given, we find from the evidence the value of the orator’s puschase to be three hundred dollars, and that of the remaining, estate to be fourteen hundred dollars.

Mien, for the orator Howe.Adams., for Chittenden.

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