Opinion
Argued September 27, 1871
Decided January term, 1872
Greene Bryant for the appellants. Geo. Wadsworth for respondent Roop.
E.C. Sprague for respondent, the plaintiff.
The referee has charged the amount due on the mortgage in suit, at the date of the conveyance from Merrill B. Sherwood to the defendant Roop, equally upon the parcels of land owned by Roop and William C. Sherwood. This has been done upon the principle of estoppel in pais, or deceit. The case shows, even more plainly than the statement of the referee in his findings of fact, that Roop was acting upon the belief that he and William C. Sherwood were liable for the payment of the said mortgage in equal shares, and that their respective parcels of land were chargeable in the same proportions. Such was not the truth, as between William C. and Merill B. Sherwood; William C. Sherwood had paid much more of the principle and interest than Merrill B. In fact, the latter had paid nothing on account of principle. William C. Sherwood was entitled to be subrogated to the rights of the savings bank to the extent of such advance, as against Merrill B. Sherwood, at the time of his said conveyance, or to have the sale of the property so managed, in the case of a foreclosure, as to protect his advances on account of the mortgage beyond his equal share or proportion. He was present at the time of the conveyance to Roop. He knew the facts. He would be benefited by having the cash payment of Roop, on account of the purchase price, increased, as the money was to be applied on debts owing by Merrill B., either to him or for which he was liable. He allowed Roop to make his payments under his mistaken and injurious belief as to the facts. He should then have spoken. The principle is too well settled to require the citation of authority, that one cannot stand by in silence when he knows that another is acting upon an erroneous state of facts, and thereafter claim the benefit of the correct state of facts, if such claim will tend to the injury of the other person. Much more is this rule just in a case where, by his silence, he derives an immediate and direct advantage over the injured party. His silence then becomes deceit and fraud. The suppression of the truth, in such a case, has the same effect and is equally culpable with the assertion of a falsehood. The defendant, William C. Sherwood, claims that the issue, not being directly between himself and Roop, as plaintiff and defendant, the evidence to prove the estoppel or deceit cannot be proven.
He is not wholly consistent in this objection, inasmuch as by his answer he demands that the court shall so adjust the equities of the parties that his parcel of the premises shall be relieved of the lien of the mortgage, for the reason that he has paid his share of it in full. Courts of equity have long exercised the power of directing, in foreclosure actions, the order in which different parcels of the mortgaged premises shall be sold, arising out of the equities of the different parties interested in the equity of redemption as between themselves. ( Rathbone v. Clark, 9 Paige, 648; Jumel v. Jumel, 7 Paige, 591; Ferguson v. Kimball, 3 Barb. Ch. R., 616.) The plaintiff has not executed any release or discharge of any portion of the mortgaged premises. The mortgage is a lien in their favor upon the whole property mortgaged. The fact that William C. Sherwood has paid the plaintiff a sum equal to one-half the amount secured, in the absence of an agreement to that effect, does not have the effect to release or discharge the share or interest belonging to him. In the absence of an express agreement, it is simply a payment on account, and he rightly insists that it is the duty of the court, on a foreclosure of the mortgage, to direct that the portion of the premises belonging to him shall not be sold until the other portions of the security have been exhausted. The principle so invoked would have been applicable to his case, had it not been for other facts proven by Roop, constituting a defence to his claim in that respect.
The objection that the evidence of the consideration paid by Roop for the conveyance from Merrill B. Sherwood, and the proportion paid in cash, or by assuming the mortgages thereon, is not well taken. That evidence was part of the case of Roop in showing the deceit or fraud of William C. Sherwood, which would prevent or estop his claim, that neither he nor his share of the property should be held to be subject to the lien of the mortgage, and also to prove that the share of Roop should be primarily liable, as between himself and William C. Sherwood, for one-half only of the mortgaged premises. The deed was between Roop and Merrill B. Sherwood, and the objection that it was impeaching or impairing the effect of it was not open to William C. Sherwood.
The judgment should be affirmed with costs to the Savings Bank, and to the respondent Roop, against the appellant and his share of the surplus
All concur.
Judgment affirmed with costs to plaintiff, and respondent Roop to be paid out of appellant's share in the surplus, and, in case of deficiency, by him personally.