Alderson v. Ames

Tuck, J., delivered the opinion of this court. This is an appeal from a proforma order of the circuit court for Harford county, sitting in equity. It appears' that Ames purchased a lot of land from one Harlan, and took from him a bond of conveyance. He after-wards, and before'payment of any part of the purchase money, mortgaged the land to the appellant, and in the mortgage assigned the bond of conveyance to him.

This mortgage was recorded on the 1st October 1845. Harlan, subsequently to this, executed' a deed to Ames, who, on the same day, mortgaged the land to Day to secure the sum of $503, recited in the mortgage as due “after a fair and equitable settlement of accounts” between the parties. It also appears by the parol proof, that part of this debt was for cash' advanced by Day to Ames to'pay for the land. The bill was filed by the appellant to foreclose his mortgage, and the question to be determined is, which of these' mortgages is to be preferred in distributing the proceeds'of sale, there not being enough! to satisfy both?

We are of opinion that Ames had an interest in the land Which he could convey by way of mortgage, and that the recorded mortgage was notice of that incumbrance, subject to the vendor’s lien for the' unpaid purchase money. The objection that this was only an equitable interest cannot avail. Where there are two or more'mortgages of the same land; all except the first must necessarily be of mere equitable estates, and it cannot be doubted that a debtor may give'a mortgage-of his equity of redemption.- Why, then; may not a vendee assign, by way of mortgage;-his interest in'the land, subject' to the vendor’s lien?' If the property rises' in' value, or is improved, as was'the case here, the purchaser has an interest in the excess over the original cost, even if the vendor should resort to the land for satisfaction. And if the purchase money be discharged by the debtor, his whole interest in the land will stand as security for the mortgage debt.

But, then, it is said'tbht Day should be preferred because his money went to discharge the land from the vendor’s lien. ⁵⁷ If this view could be made good to any extent it could not avail beyond the amount so applied. He does not claim as assignee of the vendor’s lien. Harlan says, in his proof, that he never made any assignment of his claim for the purchase money. Day stands upon his mortgage, and that