
    Chittenden County,
    December Term, 1826.
    In Chancery.
    
      Martin Chittenden vs. Truman Barney and George Howe and George Howe vs. Martin Chittenden and Truman Barney.
    
    • If several parcela of real estate are in mortgage for the same debt and a third person becomes interested in one of them, ha may call on the mortgagee to have the debt apportioned between the parcel in which he is interested and the residue of the mortgaged premises, or.for an assignment of the mortgage on payment of the whole sum due thereon.
    And if such third person has become interested through necessity, or from other motives than those of voluntary speculation, he may be allowed his choice whether to take an assignment or have an apportionment. Sn cither case regard will be had to such property only aa was equitably chargeable with, the mortgage, when the interest of the third person was.acquir «cL
    The former -of these causes was a bill to foreclose a mortgage which Barney had executed to Chittenden on the first day of January , 1817, to .secure the payment of a promisory note of that date for eleven hundred and sixteen dollars and sixty six cents; it being stated 'that Howe had subsequently purchased the estate of Barney in a part of the mortgaged premises. The latter was a cross bill in which Howe stated the mortgaged premises to consist of a farm of land, called the BurrHubbell farm of about 106 acres, and certain carding and clothing works all in the town of Jerico. He further stated that all the farm aforesaid, except about six acres on which the buildings stood, was situated on the east side of the highway leading to Essex, that the value of the six acre piece with the buildings bore a very small proportion to the value of the whole mortgaged premises, which he alleged to be worth five thousand dollars. He then alleged that a writ of execution in favor of the State Treasurer against Barney and himself, for the proper debt of Barney, was levied on the estate and interest of Barney as mortgagor in the six acre piece aforesaid, and that the orator purchased the same at public auction duly holden for that purpose, in Nov. 1821, at the price of one hundred and seventy five dollars, which he then paid in satisfaction of said execution, and took a deed from the officer duly executed. The object of the cross bill was to have the sum due to Chittenden apportioned upon the six acre piece aforesaid, and the rest of the mortgaged premises according to their respective value, and that the former piece might be discharged from the mortgage on payment of the sum thus found chargeable upon it by apportionment ; or that Chittenden might be decreed to accept the payment of his debt from the orator and execute to him an assignment of the mortgage. There was also a prayer for general relief. By the answers to this bill it appeared that in July, 1821, and previous to the issuing of the execution aforesaid, Barney sold and conveyed for his own benefit all the farm aforesaid except the six acre piece, the purchaser having first obtained the parol engagement of Gov. Chittenden to release his claim under the mortgage to the part thus purchased. A release was accordingly executed,without any consideration received, in February, 1822, after the sale and conveyance of the six acre piece' to Howe as aforesaid, the release being induced by a sense of obligation to the purchaser arising from the parol promise aforesaid. The answers further showed that Barney owned but a moiety of the carding and clothing'works, though the mortgage to Chittenden covers the whole. A hearing was now had upon the cross bill,answers and proofs, tire original bill being taken as confessed. The proofs related chiefly to the value of the several parts of the mortgaged premises, and in other respects were consistent with the answers.
    
      Mien, for the orator Howe. — The orator George Howe, contends,
    That if he is compelled to pay the amount of the debt due from Barney to Chittenden, he ought, by decree of this court, to have an assignment of all the property contained in the mortgage from Barney to Chittenden'. — 1 Johns. Ch. 413, 414, Cheesboro vs. Willard. — 2 Johns. Ch. 560, King vs. Baldwin.— 2 Johns. Ch. 394, Sells vs. Bedinct. — 1 Madd. 236, 250.
    But, inasmuch as Chittenden has put it out of his power to assign the premises, having disposed of tire Burr Hubbell farm the orator contends he ought to be holden to contribute his proportion only. — 1 Madd. 237. — 1 Johns. Ch. 412, — 1 Johns. CA.430, Stevens vs. Cooper.
    
    
      , Adams, for Chittenden. — On the part of Chittenden it is contended,
    That die parcel conveyed by Barney in July, 1821, having been released from the mortgage before Howe's purchase, is to be laid out of the case r particularly as Chittenden has received no consideration therefor.
    
      Chittenden is willing the whole of his, interest should be assigned on receiving die amount due him.
    That he has a right to retain all his security until payment of the whole sum due to him.
    That Howe having purchased with full knowledge of defendants’ claim, has no greater right than Barney would have.
    That this is not a Case for an apportionment.
    That if it was Such a case, líoxue has d'one nothing to ehtitlé him to a decree ih his favor. '
   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 the 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.  