The opinion of the Court was delivered by
This is a bill in equity to redeem certain lands of which the defendants are alleged to be mortgagees.
The defendants, answering severally, admit the conveyances, as set forth in the complainant’s bill; allege the deed of Brown & Bunker to Swett, of the equity of redemption, to have been in fraud of their creditors, and that they were such creditors, of all which the complainant and Buck had due notice before receiving their deed from Swett; that on May 23, 1851, they sold and assigned to Levi Bartlett & Co., one fourth of their mortgage and of the debt thereby secured; that, on Oct. 23, 1851, they made an entry to foreclose and took possession of the mortgaged premises; that the possession thus taken was continued by and for said Bartlett & Co. and themselves; that after such entry they divided the mortgage notes, the defendant Locke taking two, and the defendant Wheeler taking one, which they hold in severalty; that a demand was made on them and Bartlett & Co., to render, and that Bartlett & Co. did render an account.
The defendant Locke says, that she referred the complainant to Levi Bartlett & Co., upon receiving his demand for an account, and she makes their account, which she avers to be true, a part of her answer.
It appears from the proof introduced, that the complainant has the equity of redemption of all the lands included in the mortgage from Brown & Bunker to the defendants, of which the mortgagees were then seized. The lands of which Donnel & Macomber had given bonds to convey are excluded, their lands having been conveyed to Charles Buck.
1. The first objection taken to the maintenance of this bill is, that the conveyance from Brown & Bunker to Swett was fraudulent as to creditors; that the defendants were such creditors and the complainant took his title with a full knowledge of all these facts.
If the conveyance to Swett was in good faith, the plaintiff’s right to redeem is unquestioned. If fraudulent, the legal title is none the less conveyed to him. Brown & Bunker, upon their conveyance to Swett, ceased to have any legal interest in the estate. Their conveyance was binding upon them. They could neither redeem nor do any other act for the protection of the estate. As between grantor and grantee the legal title vests in the latter, however fraudulent the deed may be as to creditors. A creditor who holds a promissory note against a fraudulent grantor, cannot defeat a real action brought by the fraudulent grantee, by merely showing the conveyance fraudulent and that he was thereby defrauded. While he is a mere creditor he is in no condition to resist the legal title of the fraudulent grantee, in law or in equity. He has no legal interest in the estate conveyed. Andrews v. Marshall, 43 Maine, 272. Until the estate of the complainant is divested upon due proceedings, the right in equity to redeem is in him and he may well maintain this bill.
2. It is alleged in the answers of the defendants, that Bartlett & Co. were owners of one of the mortgaged notes and assignees of the mortgage, to the extent of their interest. But the proof fails to show these facts. The assign
3. The complainant has made no tender, but has offered to pay what may be equitably due. He seeks to excuse his want of a tender by reason of the defendants’ not having rendered, upon demand, any account of what was due upon the mortgage. By R. S., 1840, c. 125, § 16, a bill to redeem may be brought without tender, when the mortgagee, upon request, neglects or refuses “ to render a true account of the sum due, before the commencement of the suit.” “ The object of a demand in such cases,” remarks Whitman, C. J., in Cushing v. Ayer, 25 Maine, 383, “must be believed to be to obtain a statement of the precise sum due, so that a tender could be made which would be accepted.” In Allen v. Clarke, 17 Pick. 47, Wilde, J., in delivering the opinion of the Court,, says, that “ it was the intention of the Legislature that the mortgagee should, on request, furnish the mortgager, or the person having the right to redeem, with such information as would enable him to tender the sum justly due; and not to leave him exposed to the danger of tendering more, for want of knowledge of the facts.” After request made, the mort
Neither of the defendants have rendered any account. The defendant Locke, instead of rendering an account, referred the complainant to Bartlett & Co., who do not appear to have any legal interest in the mortgage.
It was decided, in Kittridge v. McLaughlin, 38 Maine, 513, that compound interest cannot be allowed on a bill to redeem a mortgage made to secure notes with annual interest. The amount given as due by Bartlett & Co., very much exceeds the notes and legal interest and cannot be regarded as such an account as the statute requires.
4. Bartlett & Co., by taking an assignment or transfer of one or more of the mortgage notes, thereby acquired an equitable interest, which a Court of Equity will uphold and protect. Moore v. Ware, 38 Maine, 496. When a bill is brought to foreclose or redeem a mortgage, all parties in interest should be made parties to the suit, whether their interests be legal or equitable. As it is apparent that Bartlett & Co. have an equitable interest in the mortgage, and are entitled to be heard in determining the amount due, they must be made parties, or else the bill must be dismissed.