able consideration, of the same real estate, or any portion thereof, whose conveyance shall be first duly recorded.” Sections 9035-9038, 3 Comp. Laws, provide for the recording of land contracts. The object of the recording laws is to protect subsequent bona fide purchasers (Godfroy v. Disbrow, Walk. Ch. 260), and to prevent fraud by securing certainty and publicity in such dealings (Atwood v. Bearss, 47 Mich. 72). In Burns v. Berry, 42 Mich., at page 179, in commenting on the policy of the recording acts, the court says: "The protection which this statute gives to a bona fide purchaser does not proceed upon the theory, and is not made to depend upon the fact, that the grantor, at the time of such conveyance, had any interest in the premises whatever, or that any passed from him by his conveyance to such subsequent purchaser. It is not by force of the conveyance, but by the terms of the statute, that such subsequent purchaser acquires title to the premises. His grantor, having previously conveyed, has no title left to convey, and could therefore by his deed, unaided by the statute, pass none to any third person. Our registry laws, however, step in, and, for the purpose of protecting an innocent purchaser, give him what he supposed, and from an examination of the records had a right to suppose, he was acquiring by his purchase, and to this extent cut off the previous purchaser who negligently failed to record his conveyance.' Brown v. Simons is [44 N. H. 475] an instructive case, not only because it is quoted with approval by Justice Campbell [in Cooper v. Bigly], but also because it comments upon and disapproves Ellison v. Pecare, which is relied upon by the complainant. We quote: "If, however, at the time of the subsequent conveyance by the mortgagor, the grantee has no notice of the prior conveyance, in fact or constructively (the same not having been registered), such subsequent grantee ought not to take the land so granted subject primarily to the whole debt. On the contrary, as the prior grantee has failed to record his deed, and thus give notice of the true state of the title, the subsequent grantee, unless otherwise notified, may rightfully regard the land which is thus apparently in the hands of the mortgagor as primarily liable for the whole debt. It is true that the first grant by the mortgagor of a part of the property does not in terms impose a lien upon what is left, but in effect it creates upon it, as between the parties, a new incumbrance, and makes it liable primarily for the whole debt, as much as if such mortgagor had mortgaged it to such purchaser to indemnify him against the original mortgage. It makes a case, then, that clearly comes within. the spirit of our statute of enrollments, which is designed for the security of subsequent purchasers and creditors, to give notice of all conveyances of any estate in lands, whether legal or equitable. I Story, Eq. Jur. par. 403; Parkist v. Alexander, 1 Johns. Ch. 398; 4 Greenl. Cruise, 448, 452, and notes; General Ins. Co. v. United States Ins. Co., 10 Md. 517; Brush v. Ware, 15 Pet. 113. * "In accordance with these views is the doctrine of Chase v. Woodbury, 6 Cush. 143, where a mortgagor conveyed the whole of the mortgaged property to S .and R., to each an undivided half, and S., having recorded his deed, conveyed his half to C. before the deed to R. was registered; and, upon the payment by the representative of R. of the whole mortgage debt, it was held that he could not require contribution of C., because C. had purchased without any notice of the sale to R., and might, therefore, rely upon the other half being first held for the whole debt, although had the deed to R. been recorded, it would have been notice of a lien on the land sold to S. equally with the other; but the failure to record it was a failure of one claiming an incumbrance, namely, a lien on the estate for a contribution for one-half the money he might pay to redeem it, and this, the court held stood upon the same footing as if R. had a mortgage from the first grantor, which he had failed to record. The result of this case is that a party purchasing a part of an estate under mortgage would be charged with notice of a registered conveyance of another part, when the effect would be to render his part so purchased liable to contribution equally with the other; and for the same reason he would be charged with such notice in a case where the effect would be to make his purchase primarily liable for the whole debt. The case of Chase v. Woodbury is directly in point, and fully sustains the views we have expressed. "It is true it has been suggested that this right to have first applied the lands remaining in the mortgagor's hands, and those last sold, is a mere equity, and not a lien or incumbrance that comes within the provisions of the register laws, and so it is directly held in Ellison v. Pecare, 29 Barb. 333; and therefore it was decided that the deed first delivered would take precedence over a subsequent deed of another parcel, although the latter was first recorded. In this case, however, it appeared that neither of these purchasers had knowledge of the original mortgage at the time of their purchase, and the court expressly declined to give an opinion as to the result had the second purchaser known of the existence of the mortgage, and had he examined the records, and, finding no previous conveyance, been induced to buy, supposing in good faith that he was the first purchaser, in which case it is said there would be some show of equity in favor of the second purchaser. In the case of LaFarge Fire Ins. Co. v. Beil, 22 Barb. 54, it was held, upon much consideration, that the register act, which provides that 'Every conveyance not recorded shall be void against a subsequent pur chaser in good faith of the same real estate, or any portion thereof, whose conveyance shall first be duly recorded,' does apply to the equitable right which is acquired by a purchaser of a parcel of the mortgaged property to have the residue first applied to the payment of the mortgage debt, and that such equitable right will not be defeated by a prior conveyance of that residue, unless it be by deed duly recorded, or other notice at the time of his purchase; and the reasons assigned for this doctrine are in no degree shaken by the subsequent case of Ellison v. Pecare, which appears to have been decided without an examination of the case of La Farge Fire Ins. Co. v. Bell. Indeed, it is difficult to see how any other result can be reached. The deed of a parcel of the tract mortgaged carries with it a well-established right to require the mortgagee first to exhaust the residue in the hands of the mortgagor before applying the parcel so conveyed; and, whether this right can be enforced only in equity or not, it is clearly a substantial interest in such residue, and one which it is the policy of the registry laws to protect. See Montgomery v. Dorion, 6 N. H. 255; French v. Gray, 2 Conn. 108; 4 Kent. Comm. 456; Brown v. Manter, 22 N. H. 468." See 2 Jones, Mortg. (4th Ed.) § 1620. When the defendant's grantor purchased the three lots, the record did not disclose a sale to Miss Gray, and he had a right to assume that the mortgagee would resort to the land still standing in the name of Mr. Baker before selling the land purchased by him. Counsel say: "The mortgage contained the following provision: 'With the privilege of having any lot released at any time on payment of $300 and accrued interest, with three months' extra interest.' Under this clause complainant was entitled to have her lot released at any time from the mortgage on payment of $300, and her lot should not be made liable to more than that amount on foreclosure of the mortgage, and any excess over that amount would have to be borne by the other lots, in any view of the case,"-citing Clark v. Fontain, 135 Mass. 464. It is doubtless true that complainant might have had her lot released from the mortgage by paying to the mortgagee $300, but she never sought to do so. She waited nearly four years after the mortgage foreclosure before filing this bill, and it is not a part of the theory of the bill. It is claimed there was paid to the bank about $70 extra interest, which was usury, and which should have been applied as a general payment on the mortgage debt. It has been repeatedly held that the defense of usury is a personal one, and may be waived. Sellers v. Botsford, 11 Mich. 59; Gardner v. Matteson, 38 Mich. 200. This case is an unfortunate one for the complainant, but it is made so by her failure to put her contract upon record. The decree is reversed, and the bill of complaint dismissed, with costs. The other Justices concurred.16 HILES v. COULT ET AL. COURT OF CHANCERY OF NEW JERSEY, 1878. Bill to foreclose. On petition to open final decree, etc. THE CHANCELLOR [RUNYON]. By the final decree in this cause, it is directed that a certain part of the mortgaged premises, which was conveyed by Joseph Coult and his wife to Isaac A. Walker, on the 1st of July, 1868, be sold to raise a part of the money due on the complainant's mortgage, which was, when the conveyance to Walker was made by Coult, an encumbrance on that and other land. Walker, subsequently, by two deeds, one dated January 18th, 1869, and the other dated February 4th in that year, conveyed two parcels of the property to the petitioners. On the 20th of November following, he conveyed the rest of the property to the complainant, who, on the 16th of September, 1876, conveyed it to Mary E. Schofield. The petition prays that the decree may be so amended as to direct that the property be sold to raise the before-mentioned proportion of the money due on the complainant's mortgage, with interest and costs, in inverse order of the conveyances; that is, that the part conveyed to and now held by Mary E. Schofield be sold for that purpose before the property of the petitioners. The conveyances by Walker were all by deeds of warranty, and neither the petitioner nor the complainant knew, at the time of taking the conveyances to them, of the existence of the mortgage now held by the complainant. They all, however, had constructive notice of it, it having been duly recorded. It is the established rule of this court that, if a mortgagor sell the land covered by the mortgage in different parcels and at different times, the parcels shall be sold to raise the money to discharge the mortgage debt in the inverse order of their alienation. Shannon v. Marselis, Sax. 413. And this rule applies though the sales in parcels were made, not by the mortgagor, but by a person claiming under him. Wikoff v. Davis, 3 Gr. Ch. 224. It is applicable, also, to a case such as the present. When the petitioners bought the part of the property which was conveyed to them, it was subject to the mortgage, but the rest of the property remained in the hands of Walker, and, as between him and them, that part so retained by him was liable, in equity, to be first sold to pay the mortgage. It is to 16 Compare Sternberger v. Hanna, 42 Ohio St. 305. be regarded as having been then equitably charged with the payment of the mortgage debt, and the complainant, when he purchased it from Walker, took the place of the latter, and took the land so charged in equity. That land, now owned by Mary E. Schofield, must, as between her and the petitioners, be first sold to raise the proportion of the mortgage debt, interest and costs, decreed to be raised by sale of the Walker property. RAPALLO, J., in HOPKINS V. WOLLEY, 81 N. Y. 77 (1880). We concur with the learned judge in holding that, in the absence of any circumstance showing a contrary intent, the reconveyance by William D. Wolley to Samuel Staples of 180 acres, out of the larger tract, said to contain 361 acres, which Wolley had previously conveyed to Staples, constituted the land remaining in the hands of Wolley the primary fund for the payment of the incumbrances, subject to which the entire tract had been conveyed by Staples to Wolley. That the facts that Staples was personally liable for these incumbrances to the persons in whose favor they existed, and that Wolley was not so liable, did not affect this equity between him and Wolley and his subsequent grantees, but that as to the 180 acres Staples was entitled to the benefit of the rule that the lands should be sold in the inverse order of their alienation, to the same extent as if he had had no previous connection with the lands.17 CAMPBELL, J., in COOPER V. BIGLY, 13 Mich. 473 (1865). It has always been understood to be the settled law of this state that, where mortgaged premises are conveyed or incumbered in parcels, they are, upon a foreclosure, to be sold in the inverse order of such conveyances or incumbrances, unless the mortgagee will be prejudiced by having the property sold in parcels-a thing which can never happen where property, when mortgaged to him, was treated as separate. This doctrine was recognized in Mason v. Payne, Walker's Ch. R., 459, and Caruthers v. Hall, 10 Mich. R., 40, in both of which cases the principal exception to the rule was referred to and enforced. The same principle was recognized and explained in James v. Brown, 11 Mich. R., 25. It rests chiefly, perhaps, upon the grounds that where one who is bound to pay a mortgage confers upon others rights in any portion of the property, retaining other portions himself, it is unjust that they should be deprived of their rights, so long as he has property covered by the mortgage, out of which the debt can be made. In other words, his debts should be paid out of his own estate, instead of being charged on the estates of his grantees. Any other rule would be, in effect, to enable him to enjoy for his own benefit that which he has once vested in another, and, 17 The original conveyance from Staples to Wolley was "subject to incumbrances." Compare Wikoff v. Davis, 3 Green Ch. (N. J.) 224. |