Cumming vs. Cumming and others.. purchasers for value, then the inquiry is, can the case at bara case as between beneficiaries or volunteers-be distinguished? What is the rule? The first purchaser shall be preferred because as between him and the grantor there is no equality; the grantee sits as much in the seat of his grantor, as the heir does in that of the ancestor, and the act of the grantor and subsequent grantee, shall not throw back a burden on the first grantee from which he had been discharged. Does not the reason apply in all its force to the case at bar? After the deed was executed to the plaintiffs in error, was not the remaining property in the hands of Mrs. Rowell first liable to discharge the incumbrance? Is not this instrument a deed? It has the form of a deed, and may have the effect and operation of a deed; if so, it is not testamentary—that is the test of the rule. The reservation of a life estate to the grantor proves it a deed; the legal estate was by this instrument conveyed absolutely to the trustee-the possession and enjoyment by the present cestuis que trust, to take effect after the determination of the life interest reserved to Mrs. R. Vested rights and absolute interests, irrevocable by the grantor, passed by this instrument. It contains, too, a covenant of warranty; shall the grantor be permitted by a subsequent sale, to annul and invalidate that covenant? We apprehend that this is a strong and decisive feature in this case. In the construction of written instruments, the intention must be gathered from the instrument and not from extraneous evidence or conjectural hypothesis. It was not the mere equity of redemption which this deed transferred; it has been decided by this Court, that a mortgage in Georgia is but a security for the debt, the legal title remaining in the mortgagor. 1 Kelly R. 193. The rule of the interference of a court of equity as between volunteers, seems to us to have been misconceived by the argument for the defendants in We understand it to be, that where the conveyance has passed, and an absolute interest vested, a court of equity will enforce the equitable interests, protect the rights under, and give effect and performance to instruments, although the consideration has been purely voluntary. 6 Vesey Jr. R. 656; 1 Johns. Ch. R. 336, 337.. error. It is expressly said in Sir William Harbert's case, that the consideration for the purchase in these cases, is immaterial to the question; and Chancellor Kent, in Clowes vs. Dickenson, cites this principle in that case without objection. It is true that some of the reasons in favour of the rule for which we contend apply more Cumming vs. Cumming and others. strongly in the case of purchasers for value; but there is quite enough to establish the same rule, although the conveyance be voluntary. No adjudicated case has been adduced in support of a distinction. By the Court.-LUMPKIN, J., delivering the opinion. This cause came on for a hearing before Judge Meriwether, in Richmond Superior Court, from which it appeared, that on the first day of July, 1833, Grace Rowell gave to Thomas Cumming a mortgage on certain lands and slaves, to secure the payment of a promissory note for nine thousand dollars, due the first day of July, 1836, with interest payable thereon annually. That on the 23d of September, 1835, said Grace Rowell made a conveyance of part of the mortgaged property to Henry H. Cumming, subject to the trusts in the deed of conveyance mentioned, the deed purporting to be founded upon love and natural affection as well as the sum of ten dollars, and containing a clause of warranty of the title against all persons claiming under the said Grace. That on the 29th of the same month, said Grace conveyed by a similar instrument, another part of the mortgaged property to Joseph Ware, subject to the trusts in this last deed mentioned. That said note and mortgage have been duly transferred to complainant, and there is yet a considerable amount of principal and interest due thereon. That said Grace Rowell has died testate, and that George L. Twiggs and John P. Eve, are her acting executors. The bill seeks for a foreclosure of said mortgage, and a decree for the sale of so much of said property mortgaged as may be sufficient to pay the balance of the debt yet due; the estate of said Grace in the hands of said executors not being sufficient for that purpose. The defendant, Henry H. Cumming in his answer, admitting the material facts contained in said bill, insisted, that no part of the property conveyed to him as trustee as aforesaid, by Grace Rowell, ought in law or equity to be subjected to the payment of said mortgage debt, until the whole of the property included in said mortgage, and remaining in the hands of the said Grace Rowell at and after the execution of the deed to the defendant, and then undisposed of by her, should have been exhausted by such payment, and that the complainant should be decreed to proceed first against the property in the hands of Joseph Ware, vre szatary in their CITOVA dat what m them, those T3 Ze lecerse of the ter to the dates LINKIR stents; and I EL LIfe decreed to con MTIMIT TE Tf the property held by Ed Je ale ear wire me jury, the presting judge instructed bem, that by 'de deeds of the 20 and 29th of September, Grace Rowel canveyed to Camming and Ware, absolute titles to the property herein mentioned, resting immediately, and that upon the execution and delivery of said deeds, she had no power by any act of her's, to affect in the slightest manner the titles to sid property, beyond the life estate which she reserved to herself; that her whole relation to the property was changed; that bire, she had an absolute fee, whereas now, she held only an estate br life. That notwithstanding the deeds to Cumming and Ware were of different dates, and their titles accrued at different times they should be held in equity to contribute ratably to the payment of complainant's debt, in proportion to the present value of ne property held by them respectively under said deeds, and bat ne id Grace Rowell, by said deeds, conveyed nothing more than ca equity of redemption in the property embraced in each, su jest me reservation of her life estate. D A verdict was rendered by the jury corresponding to sui nem, The first point to be serial a wÄTET E PE Jere he aw of the mother county is a 1 2 75 7 al 二维 Cumming vs. Cumming and others. "that a It was well remarked, however, by Lord Denman in his judg ment in the House of Peers in Mr. O'Connell's case, large portion of that legal opinion which has passed current for law, falls within the description of law taken for granted;' and that when in the pursuit of truth we are obliged to investigate the grounds of the law, it is plain and has often been proved by recent experience, that the mere statement and re-statement of a doctrine, the mere repetition of the cantilena of lawyers, cannot make it law, unless it can be traced to some competent authority, and if it be irreconcilable, to some clear legal principle." It is conceded that where there is a lien upon different parcels of land for the payment of the same debt, and some of those lands still belong to the person who in equity and justice owes and ought to pay the debt, and other parcels of the land have been transferred by him to third persons, his part of the land, as between himself and them, shall be primarily chargeable with the debt. Gill vs. Lyon, 1 Johns. Ch. R. 447; Stoney vs. Shultz, 1 Hill Ch. R. 500; Commercial Bank of Erie vs. Western Reserve Bank, 11 Ohio (Stanton) R. 444; Hartley vs. O'Flaherty, Lloyd & Gould R. 216; Temp. Pl. 19. No one seems to dispute that this doctrine is altogether equitable and proper as to the original owner; but if he has sold or transferred different parcels of land at different times to different persons, as incumbrancers or purchasers, the question is, how are they to be charged as between themselves? Is the lien to be borne ratably between them, according to the relative value of their respective estates? or in the reverse order of the liens of the transfers to them? that is to say, the land last sold to be first charged to its full value, and so backward until the debt is fully paid. Judge Story seems to incline strongly to the former opinion, and says that the doctrine has been asserted in the ancient as well as the modern English cases upon the subject. 2 Story Eq. Jur sec. 1233. And the able editor of the American Law Magazine, declares, that the following rules of proportion or contribution, as laid down in the Year-Book, and repeated in Sir Edward Coke's Reports, are now firmly established in Westminster Hall. "1. That the feoffee of a conusor, or person who has charged his land with an incumbrance, may throw the whole charge upon the conusor. "2. That the feoffees may claim contribution from each other Cumming vs. Cumming and others. contained in his deed of the 29th of September, 1835, for the satisfaction of said debt. The defendant, Joseph Ware, likewise admitting all the material facts, insisted that the instruments in writing under which both he and the defendant Cumming, claimed to have property conveyed to them by Grace Rowell, were testamentary in their character, and if not, were voluntary conveyances, and that whatever rights the several cestuis que trust derived from them, those rights all accrued at the same time, to wit, at the decease of the said Grace Rowell, and had no reference whatever to the dates and times of the execution of said respective instruments; and prayed that Henry H. Cumming and himself be decreed to con tribute ratably, according to the value of the property held by them, to the payment of complainant's demand. The cause being before the jury, the presiding judge instructed them, that by the deeds of the 23d and 29th of September, Grace Rowell conveyed to Cumming and Ware, absolute titles to the property therein mentioned, vesting immediately, and that upon the execution and delivery of said deeds, she had no power by any act of her's, to affect in the slightest manner the titles to said property, beyond the life estate which she reserved to herself; that her whole relation to the property was changed; that before, she had an absolute fee, whereas now, she held only an estate for life. That notwithstanding the deeds to Cumming and Ware were of different dates, and their titles accrued at different times, they should be held in equity to contribute ratably to the payment of complainant's debt, in proportion to the present value of the property held by them respectively under said deeds, and that the said Grace Rowell, by said deeds, conveyed nothing more than the equity of redemption in the property embraced in each, subject to the reservation of her life estate. A verdict was rendered by the jury corresponding to said charge, whereupon the defendant, Henry H. Cumming, excepted to the judgment and charge of the Court, 1st, because he is not liable in equity to such contribution, and 2nd, because such contribution, if made at all, should not be made in proportion to the value of the property at the time of the decree. [1.] The first point to be settled is, whether or not there be any fixed and well defined English rule upon this subject; for if it be the law of the mother country, as adopted in this, in 1776, we are bound by it of course, whether it be reasonable or otherwise. |