gages, each describing a distinct parcel of land, the plaintiff is entitled, with his writ of possesand each given to secure a distinct and particu- sion, to an execution for his costs, although lar debt, which mortgages had come to the embraced in the decree. The day of the expirplaintiff by assignment ;-Held, that a tender, ation of the time limited for redemption is the during the pendency of the suit, of the debt day of the rendition of final judgment, for the due upon part of the mortgages, and the costs, purposes of taking execution and charging bail defeated the action as to the lands embraced in upon the original writ. Emerson v. Washburn, those mortgages. Ib. 8 Vt. 9. V. REMEDY IN CHANCERY. 144. Rents and profits. Where a second mortgagee, or a creditor who has levied upon the equity of redemption, brings ejectment against the mortgagor after judgment in eject1. Bill to foreclose ;-to redeem. ment by a former mortgagee, and while the time given therein for redemption is running, 150. Foreclosure. A bill to foreclose need he cannot recover the rents and profits, for they not allege that the mortgagor had any title in belong to the former mortgagee, but he may the premises mortgaged. Shed v. Garfield, 5 recover nominal damages. Collins v. Gibson, Vt. 39. 5 Vt. 243. 151. The foreclosure of mortgages by peti 145. A second or later mortgagee may tion under the act of 1852 (G. S. c. 29, s. 75), maintain ejectment against the mortgagor, or applics as well to disputable cases, as to cases any one in possession claiming title under him, not disputable. Wood v. Adams, 35 Vt. 300. and may, by way of damages, recover rents 152. Where a mortgage given to secure a and profits from the time of notice given, or promissory note misdescribed the note, by missuit brought, unless the previous mortgagee take;—Held, that the mortgagee was entitled has brought suit, or given notice to pay the to relief in equity, and to a decree of forerents to him. Wires v. Nelson, 26 Vt. 13, ex- closure against a subsequent mortgagee. Porter plaining Collins v. Gibson. v. Smith, 13 Vt. 492. 146. Redemption. The statute allowing 153. Redemption. A mortgage deed was the redemption of lands after judgment in an decreed to be reformed in chancery, on bill action of ejectment (G. S. c. 40, s. 7), applies brought by the mortgagee, so as to include only to the case of a technical mortgage, either some lands intended and agreed to be mortby way of a conveyance to be void on condi- gaged, but which, by mutual mistake, were tion, or with defeasance under seal. Miller v. not included;-and this was done after the Hamblet, 11 Vt. 499. Olcott v. Dunklee, 16 mortgagee had obtained a judgment in ejectVt. 478. Harrington v. Donaldson, 31 Vt. 535. ment according to the mistaken description and 147. The defendant conveyed lands to the the time given for redemption had expired, plaintiff by deed, with a condition of defeas- and after the mortgagee had conveyed the estate, ance upon the payment of certain notes to the according to such description, to a third perplaintiff, and that he "should also put a good son, but all before the mistake was discovered; cellar under the frame on said premises, and -and the decree in the action of ejectment was finish off the house in good style, and paint it white within one year," &c. In ejectment, the plaintiff proved a breach of this last condition, and recovered judgment. On motion by the defendant to redeem under G. S. c. 40, ss. 7-11-Held, that the statute did not apply, and that the defendant's only relief was in a court of equity. Harrington v. Donaldson. opened, and the mortgagor, on his cross bill, was allowed to redeem the whole premises according to the reformed deed, by paying the whole mortgage debt. Blodgett v. Hobart, 18 Vt. 414. 154. A mortgagee sold at auction the mortgaged premises, and gave a warranty deed and possession, and applied the proceeds upon the 148. The plaintiff in ejectment held two mortgage debt,-all this, with the approval mortgages of the premises, one of which was and concurrence of the mortgagor. The purdue when the suit was brought, and the other chaser went into possession, and so held for not, but it became due before the judgment. more than 13 years, having made valuable imOn the defendant's motion, after judgment, to provements, and without any claim or dissent redeem;-Held, that in ascertaining the sum on the part of the mortgagor. Held, that the due in equity, the sum due on the first mort-mortgagor could not be let in to redeem ;gage only should be computed, and that the much less his assignee, who had taken a condefendant was entitled to redeem on payment veyance from him upon an agreement to pay a of that sum. Lamson v. Sutherland, 13 Vt. certain price in case a redemption was allowed, 309. otherwise nothing;-that such bargain was un149. Execution on judgment. In eject- lawful, as being a species of champerty or ment upon a mortgage, where the defendant on maintenance. Wright v. Whithead, 14 Vt. 268. motion gets time to redeem and fails to redeem, 155. The orator conveyed land to B, as a security, taking back a bond of defeasance. By opened to allow such person, not made a party, subsequent arrangement between these parties to redeem, although he conveyed with warand C, C advanced to B what was then mutu- ranty against incumbrances, in ignorance of the ally understood and estimated as the sum due mortgage lien. Barton v. Kingsbury, 43 Vt. to B, and thereupon the orator surrendered 640. to B his bond, and B conveyed the premises 164. The chancellor, in his discretion, to C; and the orator also conveyed to C, might have allowed such person to come in and C gave the orator a bond of defeasance and be heard in respect to the accounting; but, conditioned for the payment of the sum so in a bill to foreclose, it is not necessary to make advanced for him to B—thus, in effect, creat-those parties who have no lien or interest in ing a new mortgage to C. The sum so estimated the premises. Ib. Prout, J. as due to B and advanced by C was, in fact, 165. The orator bought a farm of A, and gave less than the sum due and secured. On a bill A a mortgage back to secure his notes given for against B and C to redeem ;-Held, that B retained no subsisting lien for such excess, and, on the case as thus made and heard on bill and answers, the orator was allowed to redeem by paying the amount due to C. Hodgman v. Hitchcock, 15 Vt. 374. See COSTS, II. 2. Parties. 156. Upon a bill to foreclose a mortgage given to one member of a copartnership, but to secure a debt due the firm ;-Held, that all the partners must be joined. Noyes v. Sawyer, 3 Vt. 160. 157. A subsequent mortgagee is a proper but not necessary party defendant to a bill to foreclose. Weed v. Beebe, 21 Vt. 495. the purchase money. He afterwards sold the farm to B, and took back a mortgage conditioned for the payment of the notes given to A, as they should fall due. B sold the farm to C, who mortgaged it back to B with like condition. C made a second mortgage to D. Upon a bill against B, C and D to compel them to pay the orator's notes to A, and to release him from liability thereon, or be foreclosed ;-Held, that A was a necessary party. Morse v. Larkin, 46 Vt. 371. 166. In case of the decease of a mortgagor, his administrator is the proper party to bring a bill to redeem. Merriam v. Barton, 14 Vt. 501. 167. On a bill to redeem, a party liable to account is a proper party defendant. Wing v. Cooper, 37 Vt. 169. 158. A creditor who has levied his execu- 168. Where the assignee of a mortgage tion upon an equity of redemption is a proper brings a bill to foreclose, he must see to it that party defendant to a bill to foreclose the mort- the mortgagee is made a party, whenever that gage, although the time for redemption from is necessary for his security, and cannot require the levy has not expired. Bullard v. Leach, 27 the defendant to bring a cross bill for the purVt. 491. pose of bringing in the mortgagee. Sharp, 15 Vt. 115. 159. A creditor who has attached lands previously mortgaged is a proper defendant in a bill to foreclose the mortgage—(overruling, on this point, Nichols v. Holgate, 2 Aik. 138, and dictum in Downer v. Fox, 20 Vt. 388). If not made a party, he is not bound by the decree rendered. Chandler v. Dyer, 37 Vt. 345. (Since provided for by Stat. 1864, No. 29.) 160. To a bill by a trustee to foreclose a mortgage, the cestui que trust is a necessary party. Davis v. Hemingway, 29 Vt. 438. 3. The account. Ward v. 169. Rents and profits. In determining the sum due upon a mortgage, where the mortgagee had been in possession, and there was no evidence as to the value of the rents and profits, the court balanced the interest by the rents. Wright v. Parker, 2 Aik. 212. Hunt v. Tyler, 2 Aik. 233. 161. To a bill to foreclose a mortgage given 170. In an accounting between mortgagor by a surety, the principal should be made a and mortgagee, where the latter had entered party; but where objection was not taken for upon and occupied the premises;-Held, that this cause in the outset, and the principal was he should account for rents and profits arising present at the accounting, the court proceeded from improvements made by a third person, to render a complete decree. Davis v. Converse, who claimed under neither, but occupied 35 Vt. 503. wrongfully. Merriam v. Barton, 14 Vt. 501. 171. A mortgagee in possession is bound to account only for what he receives or might receive from the mortgaged premises by the use of fair, reasonable diligence and prudence, and if he rents the premises, and the rents are lost by the failure of the tenant, without fault of 163. A decree of foreclosure will not be the mortgagee, he is not liable to account 162. The purchaser of land subject to a mortgage, who afterwards conveys it with warranty, is not a necessary party to a bill to foreclose the mortgage; and the bill, as to him, may be dismissed on his motion. Soule v. Albee, 31 Vt. 142. therefor; but where the mortgagee himself oc- not by taking the amount of a previous decree cupies, and especially where the premises are a of foreclosure of the same mortgage, and castfarm under cultivation, upon which labor and ing interest thereon, where the defendant was expenditures are to be bestowed to produce not a party to that decree. This would be to annual crops and profits, he will be charged charge him with interest upon interest. Ib. with such sum as will be a fair rent for the premises, without regard to what he may, in fact, have realized as profits from the use. Sanders v. Wilson, 34 Vt. 318. 4. Decree. 178. Form of decree. A sale of mort172. Where a mortgagee takes possession gaged premises under our practice is never of the mortgaged premises with full knowledge decreed. Gates v. Adams, 24 Vt. 70, 74. of the right to redeem, and there is nothing to 179. A power of sale in a mortgage is in show but that the mortgagor desires and intends practice unusual, if not unknown, in this State. to redeem, he has no right to expend the rents Wing v. Cooper, 37 Vt. 169. and profits for anything but such as are strictly necessary repairs. If he go beyond this, and make improvements, though they are such as are beneficial to the estate, and such as a judicious and prudent owner would make for the benefit of it, he will not be allowed for them. Poland, C. J. Ib. 180. The ordinary time allowed for redemption from a decree of foreclosure of a mortgage, fixed at one year and one week. Langdon v. Stiles, 2 Aik. 184. 181. In behalf of an administrator, the court extended the usual period of redemption in a decree of foreclosure, by ordering payment 173. In taking an account, with a mortgagee of the mortgage money, one-half in one year, in possession, of the sum due upon the mort- and the remaining half in two years. Austin gage, the annual rents and profits should be v. Jackson, 10 Vt. 267. applied annually, first in payment of the inter- 182. In this State, on a bill to redeem, the est, and the balance in reduction of the princi-course is the same as on a bill to foreclose,— pal. Gladding v. Warner, 36 Vt. 54. that is, the decree fixes a time when the money 174. Application of counter-claim. D, due on the mortgage is to be paid, and, on in his lifetime, gave the orator his notes and failure, that the equity of redemption be foresecured them by mortgage, and afterwards gave closed. Smith v. Bailey, 10 Vt. 163. the orator other notes not secured. The orator 183. Effect. A decree of foreclosure is afterwards became indebted to D, not in the conclusive as to the amount due on the mortway of payment upon the notes. D died in-gage, which, of course, settles all questions as solvent, and all the notes were presented to to the rents received by the mortgagee before and allowed by the commissioners, and D's that time. Chapman v. Smith, 9 Vt. 153. claim was allowed in set-off thereto, and a gen- 184. The purpose and effect of a decree of eral balance struck in favor of the orator, being foreclosure are to cut off the right of redempsomething less than the amount of the mortgage tion, and not to settle questions of construction notes. On a bill to foreclose the mortgage ;- of the deed; it simply converts the conditional Held, that the administrator could not insist title into an absolute one, and, in other respects, that the claim in favor of D's estate should be leaves the rights of the parties to be determined first applied upon the mortgage notes, but that by the deed;-unless the question of constructhe law would apply it first upon the notes not tion is made in the bill, and is explicitly adju secured; and the orator was allowed a decree dicated in the decree. Carpenter v. Millard, of foreclosure for the balance found by the 38 Vt. 9. commissioners. Putnam v. Russell, 17 Vt. 54. 185. A foreclosure does not cut off a right 175. Costs of former suit. Costs of a or easement in the mortgaged premises which suit at law brought to recover a mortgage debt, a defendant, not mortgagor, had acquired but afterwards discontinued, are not to be in- before the giving of the mortgage. A forecluded in a decree of foreclosure of the mort-closure simply cuts off an equity of redemption gage. Woodstock Bank v. Lamson, 36 Vt. 118. in the thing mortgaged. Shaw v. Chamberlin, 176. Where a former decree of foreclosure 45 Vt. 512. has become absolute as to the mortgagor, an 186. A stranger, by the consent of a mortafter decree against a subsequent mortgagee gagor, built a barn upon the land mortgaged, should embrace the costs in the first; for, by after the law day of the mortgage had expired, redeeming, he would acquire the benefit of the and during the pendency of a suit for the forefirst decree free of redemption by the mort-closure of the mortgage. Held, that the title gagor. Ib. to the barn passed to the mortgagee, the prem177. Interest. In making up a decree of ises not being redeemed; and that the builder foreclosure against a subsequent mortgagee, had no right to remove the barn after the time the amount is to be ascertained by computing fixed in the decree for redemption had expired. simply the sum due upon the mortgage; and Preston v. Briggs, 16 Vt. 124. 187. A decree of foreclosure, and expiration | stances, that chancery would not relieve the of the time for redemption, and possession taken assignee from payment of the note. Smalley v. under the decree, operate as a purchase of the Hickok, 12 Vt. 153. estate by the mortgagee in satisfaction of the 196. A decree of foreclosure was opened, mortgage debt, if the value of the estate be where the failure of the mortgagor to pay equal to the amount of the decree at the expira- according to the decree, was in consequence of tion of the time given for redemption; if less propositions of settlement and payment to be than that value, then in satisfaction pro tanto. carried into effect after the expiration of the Lovell v. Leland, 3 Vt. 581. 15 Vt. 113. 36 time fixed, by the decree, for payment, and the Vt. 122. Paris v. Hulett, 26 Vt. 308, over- failure to perform was on the part of the mortruling Strong v. Strong, 2 Aik. 373. gagee. It would be otherwise, where the 188. The law is the same, where the fore- failure so to perform was on the part of the closure is by an action of ejectment and motion mortgagor. Pierson v. Clayes, 15 Vt. 93, 104. to redeem, under the statute. Paris v. Hulett. 18 Vt. 422. Emerson v. Washburn, 8 Vt. 14. 197. The failure of the mortgagor to pay a 189. Held otherwise, where no decree, in second installment of a decree of foreclosure, form, had been made and enrolled, and the fallen due while his bill was pending to be mortgagee had not taken possession, nor relieved from the forfeiture for non-payment attempted to. Austin v. Howe, 17 Vt. 654. of an earlier installment, was held to be no 190. Payments-Their effect. The pay- obstacle to opening the decree. Pierson v. ment of a decree of foreclosure stays its opera- Clayes. tion, not only as against the party paying, but as to the other defendants. Wheeler v. Willard, 44 Vt. 640. 198. Where one, at the request of a mortgagor and for the purpose of giving him further time to redeem, purchased and took an assignment of a decree of foreclosure, before the time limited for redemption had expired;-Held, 191. As to opening decree. A decree of foreclosure, whether redeemed or not, is no bar to a suit upon the mortgage securities. The that this opened the decree and left the mortsum paid on the redemption, or the land taken on the decree, only operates as a payment pro tanto. But such suit lays the foundation for opening the decree, if the mortgagor so elect. Smith v. Lamb, 1 Vt. 395. gagor as if no decree had been made, and that the assignee took the place of the mortgagee without foreclosure. Cooper v. Cole, 38 Vt. 185. 199. A promise made by a mortgagee, after 192. Where, after foreclosure of a mortgage foreclosure of his mortgage, to a subsequent and possession taken under the decree, the mortgagee, which is relied upon by the latter, mortgagee sues to recover the balance of the that he might redeem after the expiration of mortgage debt, this, as it seems, operates to open such decree, will, in equity, bind the former, or the foreclosure, and to give the mortgagor an any purchaser of his mortgage and of the election to redeem. In such case, the mort-decree after it has expired, who has knowledge gagee should have it in his power to reconvey of such agreement; and will entitle such second on receiving the whole amount of his debt. mortgagor to redeem. Woodward v. Cowdery, Lovell v. Leland, 3 Vt. 581. 41 Vt. 496. 193. But if, pending the running of the 200. In such case, the redemption by a subdecree, the mortgagee recovers judgment for sequent mortgagee of the mortgage foreclosure damages in ejectment and collects such dam- would open the decree as to all persons interestages before forfeiture under the decree, this ed in the mortgaged estate, and preserve their will not open the decree without an offer to respective rights, according to the priority of pay the balance due, nor could the money so their respective equities in the premises. Ib. collected be recovered back. Thomas v. Warner, 15 Vt. 110. 194. If, after a decree of foreclosure has expired, the mortgagee receives payment of part of the sum decreed, this opens the foreclosure. Converse v. Cook, 8 Vt. 164. VI. MORTGAGE OF CHATTELS. 201. The mortgage of a personal chattel passes the general property to the mortgagee, subject to be redeemed according to the terms 195. After a decree of foreclosure had ex- of the contract; and if not redeemed within pired, but after the payment of some previous the time limited, the property becomes absolute instalments, the assignee of the mortgagor con- in the mortgagee. But in case of a pledge, the tracted to pay the mortgagee a sum for the general property does not pass, but only a land, exceeding the amount of the decree, for a special property, or lien; and in this case, deed thereof. He paid the amount of the although the pledge may not be redeemed by the decree, and gave his note for the balance, and time limited, yet it still retains the character of took a deed. Held, there being no fraud, nor a pledge. Wood v. Dudley, 8 Vt. 430. any unauthorized advantage taken of circum- 202. By the mortgage of a chattel, the gen J, eral property passes; whereas, by a pledge, only applicable to a mortgage of chattels, even where a special property passes. Possession by the it is a mortgage back of the property at the pledgee is essential to a pledge; whereas, in case same time purchased. Tobias v. Francis, 3 Vt. of a mortgage, the mortgagor may, as between 425. Woodward v. Gates, 9 Vt. 358. the parties, retain possession. The same terms 210. Executed in another State. which create a pledge, if possession passes, a resident of this State, purchased of the will generally be held to create a mortgage, if plaintiff in New Hampshire a horse, and gave possession is to be retained. Conner v. Car- back a mortgage of the same to secure the purpenter, 28 Vt. 237. chase price, and brought the horse into this 203. The mortgagor of a personal chattel State, where it was attached for his other debts. cannot sustain trover against his mortgagee for The Statute of New Hampshire required that the a sale of it, unless it be redeemed. Without mortgage be recorded in the office of the redemption, the title of the mortgagee becomes clerk of the town where the mortgagor absolute at the date of the mortgage, by relation. resides. It was, in fact, recorded in the town Wood v. Dudley, 8 Vt. 430. where the mortgagee (the plaintiff) resided. 204. The defendant, being indebted to the Held, that the statute of New Hampshire could plaintiff, gave him an absolute bill of sale of apply only to contracts in that State, the mortcertain household goods, with receipt of pay-gagor residing there, and that the attachment ment therefor, and at the same time gave the must prevail. Woodward v. Gates. plaintiff a receipt for the same goods, to be 211. A mortgage of chattels, executed in safely kept and returned on demand after a New York and valid by the laws of that State certain date. It was further agreed by parol, without a change of possession, will not prothat if the defendant should pay said debt by tect the property from attachment in this State the date named in the receipt, the goods should by the creditors of the mortgagor, if found here be his, otherwise they should be the plaintiff's in his possession, though brought here by him absolutely. Held, that this was a mortgage, for a temporary purpose. Skiff v. Solace, 23 and that trover lay therefor, upon demand, after Vt. 279. Overruled, infra. the time of payment named. Gifford v. Ford, 212. Our local rule of policy, requiring a change of possession of chattels sold, or mort 5 Vt. 532. 205. A writing by which a chattel was ex-gaged, in order to protect the property from pressed to be "turned out and delivered," and attachment and execution for the debts of the which conferred a power of sale to satisfy a vendor, or as against a bona fide purchaser, certain demand, where the property remained in the possession of the grantor, was held not to be a pledge, but a mortgage. Atwater v. Mower, 10 Vt. 75. 206. So, where it was expressed as "turned out" as "security" for a certain debt, and it was contemplated that the possession was to remain in the grantor. Coty v. Barnes, 20 Vt. 78. Blodgett v. Blodgett, 48 Vt. 32. 207. A mortgagee or pawnee of a chattel may assign over the thing mortgaged or pawned; and the assignee will take it under all the responsibility of the original party. Russell v. Fillmore, 15 Vt. 130. Hammond v. Plimpton, 30 Vt. 333. does not extend to a transfer made in another State where the parties to the contract resided, and where the property was located at the time of the transfer, so as to defeat a title which was perfect by the laws of that State, not only against the former owner, but against his creditors. Cobb v. Buswell, 37 Vt. 337. Taylor v. Boardman, 25 Vt. 581. Jones v. Taylor, 30 Vt. 42. 213. Where certain carding machines, situate in Massachusetts, were there mortgaged, two of the three mortgagors and the mortgagee residing there, and the mortgage was assigned to the plaintiff and by him there foreclosed, so that his title by the laws of that State was 208. A mortgagor of personal property, after absolute and valid as against creditors and purcondition broken, has an equity of redemption chasers of the mortgagors, without the taking of which may be asserted, if he bring his bill to possession, and one of the mortgagors wrongredeem within a reasonable time. A tender of fully brought the property into Vermont and the debt after default, without acceptance, does here sold it to the defendant, a resident of Vernot extinguish the legal title of the mortgagee; mont, who purchased it bona fide and without but where, after a tender and before final hear-notice of the mortgage:-Held, in an action of ing, the mortgagee disposed of the property, he trover therefor, that the plaintiff's title was not was held to account, on a bill to redeem, for the defeated by want of possession, and that he was excess of value above the debt. Blodgett v. entitled to recover. Taylor v. Boardman. Blodgett, 48 Vt. 32. 214. A chattel mortgage executed in New 209. Change of possession. The doctrine York-both parties there residing, and the propthat a sale of personal property unaccompanied erty having its visible locality there, and being by a change of possession is inoperative and valid by the laws of that State without a change void as against the creditors of the vendor, is of possession,-was held to prevail against an |