2. MORTGAGES (§ 290*)-TRANSFER OF PREM- | cel, in lots numbered on a map as lots 142, ISES-ORDER OF LIABILITY.

In such cases, the rule in equity, that the aliened portions shall be sold in the inverse order of their alienation, does not apply.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 791-805; Dec. Dig. § 290.*] 3. MORTGAGES (§ 290*)-TRANSFER OF PREMISES CIRCUITY OF ACTION.

One of the cogent reasons for denying the application of this rule in such cases, beyond that of enforcement of the performance of the contract of assumption, is the anxiety of a court of equity to avoid the circuity of action which would necessarily result from the sale on foreclosure of the mortgage of the mortgagor's remaining lands before those of the defaulting purchaser have been applied toward the satisfaction of the mortgage debt.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 791-805; Dec. Dig. § 290.*] 4. MORTGAGES (§ 290*)-FORECLOSURE-Order OF SALE.

The fact that the defendant Towell became an alienee of the second and third tracts, conveyed to him expressly subject to the mortgage which he had previously covenanted to pay, must be regarded as decisive against him of the question of his equity, which he has raised upon this appeal.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. 88 791-805; Dec. Dig. § 290.*]

Appeal from Court of Chancery.

Bill of foreclosure in equity by the Chancellor of New Jersey against Joseph Towell and others. From a part of the decree for complainant, defendants appeal. Reversed, with directions.

William I. Lewis, for appellants. S. Hilton, for respondent.

lot No. 175, described in the Master's report 144 (part of lot 146), 171, 173, and part of as the "Second Tract," to the said Joseph Towell. After Woodruff's death, his executors, by an executor's deed, drawn in the usual form and without covenants of warranty, thirdly, conveyed on February 16, 1887, another parcel of said mortgaged land, described in the master's report as the "Third Tract," being composed of lots Nos. 140 and 169, in block A, as laid down on a map, to the said Joseph Towell. There was then left unconveyed in the estate of Woodruff lots 139, 141, 143, 145, 149, 151, and part of 153, on the west side of Lilly street, as indicated on said map.

[1] The appellants urge that the abovedesignated second and third tracts should have been decreed to be sold next after the sale of the said first tract to pay any deficiency (there being no dispute as to its priority of liability) of the proceeds of sale necessary to satisfy the mortgage debt re maining after the sale of said first tract, and before resort be had to the said unconveyed lots still owned by the appellants. The decree complained of, on the contrary, orders these unconveyed lots to be sold before the said second and third tracts are exposed to sale; and hence the dispute which is the subject of the present appeal.

In the sale from Woodruff to Joseph TowGeorge ell, dated July 5, 1882, the latter, in consideration of that conveyance to him, entered into an absolute agreement and covenant, therein set forth next to the description of the parcels conveyed by it, as follows, viz.: "And which is hereby sold subject to a mortgage executed by said Woodruff to the Chancellor of New Jersey, to secure the payment of thirteen thousand dollars to the said Chancellor, with interest, as in said mortgage stated, which mortgage was dated December 16th, 1870, or about that time, and the payment of which said sum of thirteen thousand dollars, with interest, as in said mortgage stated, the said Joseph Towell hereby assumes and covenants for himself, his heirs, executors and administrators, to and with the said Absalom Woodruff, his executors. administrators and assigns, to pay off and discharge according to the terms and conditions in said mortgage mentioned including the buildings, plants, trees and flowers thereon."

VREDENBURGH, J. This controversy concerns the order of sale of parcels of mortgaged premises under foreclosure, and involves the correctness of the decree below in directing certain of the parcels, which remain unconveyed by the mortgagor and his executors, to be sold before resort be had to certain previously conveyed parcels, called, in the decree, the "Second and Third Tracts." In December, 1870, Absalom B. Woodruff, being seised of a tract of land in Paterson, N. J., became indebted to the Chancellor of New Jersey in the sum of $13,000 and gave his bond for double that sum in the usual form to the Chancellor, conditioned to be void if he (Woodruff) should pay that sum, with interest, upon the happening of the deaths of two named persons (then living, but who have since died), and to secure such payment executed, at the same time, a deed of mortgage, covering his said land, containing the same conditions as the bond.

Woodruff died October 11, 1886, but before that event conveyed, by deed of warranty, two separate parcels of the land embraced in the mortgage on the dates following: First, on July 5, 1882, a parcel, described in the master's report as the "First Tract," containing four acres to the defendant Joseph Towell; second, on March 5, 1885, another par

On the same date (July 5, 1882), said Towell, with his wife, executed an indemnifying mortgage to said Woodruff, covering the same land and premises conveyed to Towell by the last-mentioned deed, stating in said mortgage "that the premises thereby mortgaged were the same conveyed by said Woodruff to said Towell by said deed subject to said $13,000 and the payment of which said sum of $13,000 secured by said mortgage of $13,000, with

interest, was by said Towell assumed; pro-Eq. at page 424, Chancellor Vroom said: "It vided always, and said mortgage from said is the policy and duty of this court to settle Towell to said Woodruff was therein declar- and adjust all claims between the parties in ed to be, upon the express condition, that if one suit, if possible. * * There can the said Towell, his executors or adminis- be no good reason assigned why there should trators, did and should well and truly pay be this circuity of action, but a very good or cause to be paid to the Chancellor the one why there should not, which is that the sum of money and interest secured by said money might be lost (to Carrick) altogether." $13,000 mortgage to said Chancellor and in- [2] The rule in equity that, where mortdemnify and save harmless the said Wood-gaged premises are sold in separate parcels ruff from any payment thereon, according to the condition of a certain bond bearing even date with said mortgage to said Woodruff, executed by said Towell to said Woodruff, then said bond and mortgage of said Towell should be void."

successively to different purchasers, with covenants against incumbrances, the parcels are liable to sale to satisfy the mortgage, in the inverse order of their sale, "will not be applied in any case where its application would work injustice." Hill's Administrator The explicit terms of this mortgage from v. McCarter, 27 N. J. Eq. 41; Hoy v. BramTowell to Woodruff make assurance doubly hall, 19 N. J. Eq. 563, 97 Am. Dec. 687; sure that the intent of the respective parties | Hanes v. Denby, 28 Atl. 798.

executing and accepting these sealed instru- Prof. Pomeroy, in his Equity Jurispruments was that Towell assumed thereby, as dence, at page 215, par. 1224, of volume 3, a part consideration for the land conveyed states the general rule in equity in this to him, to pay and discharge all of Woodruff's form: said mortgage debt to the Chancellor, and indemnify Woodruff against its payment.

"Whenever the mortgagor has conveyed separate parcels of the mortgaged premises by warranty deeds to successive grantees, and there was no special provisions in any of their deeds, and no other dealings between themselves or with the mortgagor, which disturb the equities otherwise existing, a priority results, depending upon the

Incontestably, the consequence, in equity, of such an assumption was that Towell became thereafter, as between himself and his vendor, the principal debtor, and the liability of the vendor, Woodruff, in respect to the mortgage debt, was that of surety. This re-order of conveyance." But in his next parlationship, established by the covenant of Towell in the deed, was reinforced by the terms of his bond and mortgage, just quoted. By the acceptance of this title, the clause of assumption by Towell in the deed to him became his covenant, and he thereby became bound in law to his grantor to pay the mortgage (Finley v. Simpson, 22 N. J. Law, 311, 53 Am. Dec. 252) and liable to him for any deficiency which might exist upon a sale of the mortgaged premises.

In Weatherby v. Slack, 16 N. J. Eq. 493, Chancellor Green said: "The real question in such cases must always be, Who in equity is bound to pay the debt? The debt is due from the mortgagor to the incumbrancers, and his [the mortgagor's] portion of the mortgaged premises must primarily bear the burden, “unless it be shown that it has, by some means, been shifted upon the portion of the alienees."

agraph (1225) he proceeds to consider the dealings between the grantee and the mortgagor which "disturb" those equities and defeat the rule, and says: "The doctrine stated in the foregoing paragraph is one of purely equitable origin, and is not an absolute rule of law; and if the peculiar equitable reasons on which it rests are wanting it ceases to operate. * * * The equities among successive grantees, as determined by the general doctrine of the preceding paragraph, will therefore be disturbed in the following instances: (1) Whenever a grantee of any parcel either expressly assumes the payment of the mortgage, or his deed is of such a form that he takes the parcel conveyed to himself subject to the mortgage as a part of the consideration; then, as has already been shown, the parcel thus purchased becomes, in the hands of himself and of those holding under him, primarily chargeable with the [3] As soon as the debt in question be- mortgage debt as against the mortgagor came payable, Woodruff, the surety, had the grantor, and consequently as against all subright to file a bill to compel payment by sequent grantees of other parcels from the Towell, the principal debtor, in order that mortgagor. By such an express or implied he (the surety) might be relieved from re- assumption, the doctrine of liability, in the sponsibility; and the court will interfere inverse order of alienation, and all its con"to compel payment by the principal rather sequences are defeated with respect to the than the surety, in order to enforce the per- mortgagor and the subsequent grantees. (2) formance of the obvious duty of the princi- In like manner, when the deeds to the sucpal to protect the surety from a needless cessive grantees are not warranty or equivaburden, and to prevent circuity of action." | lent thereto, but simply purport to convey Irick v. Black, 17 N. J. Eq. 189-197. "The the mortgagor's right, title, and interest in court will interfere, though the principal is the parcels, the intention is clear that the perfectly able to respond in damages, and there is no danger of eventual loss." 17 N. J. Eq. 197. In Shannon v. Marselis, 1 N. J.

grantees respectively assume their portions of the burdens. Their several parcels are all liable ratably, and not in the inverse order."

If, therefore, the case were bare of other circumstance than the fact that Towell is the same person who assumed the payment of the mortgage debt as part of the consideration for the first tract conveyed to him, and gave a personal collateral bond, conditioned upon his paying such debt, I should think the payment by him to the mortgagor grantor of the full consideration for the second and third tracts would entitle his second mortgagee to require the sale of the mortgagor grantor's remaining land before said tracts were called upon.

There was, however, another important circumstance connected with the conveyances of these two tracts. They were not only conveyed subject to the lien of the mortgage, but it was expressly stated in the conveyances that this was done purposely, because the

parcel conveyed, to call upon such parcel to | Garrison in Marsden v. White, 71 N. J. Eq. contribute towards the payment of his mort- 224-229, 65 Atl. 181, 183, quoting from Brewgage debt until his remaining mortgaged landing Co. v. Clement, 59 N. J. Law, 48, 35 Atl. had been first exhausted. Of course, there 647: "Avoidance of circuity of action is at may be other reasons than nonpayment of best a doctrine of convenience, a secondary consideration for the express assumption by equity, so to speak, and not to be resorted the conveyed parcel of a part or all of the to in the face of either legal rule or substanmortgage debt; but, in the absence of such tial right." express assumption, the payment or nonpayment of the consideration furnishes, in my judgment, the real, underlying, and substantial basis for the application or nonapplication of this equity, rather than the presence or absence of a covenant warranting title. Of course, a warranty of title against the mortgage will give rise to the application of the equity; but obviously there would be no warranty of title if a part of the consideration was to be the payment by the conveyed parcels of the mortgage debt; and, on the other hand, the mere absence of an express warranty of title against the mortgage incumbrance, if there had in fact been a payment of the full consideration for the conveyed parcel, would not defeat the real reason for the equity, and consequently, as it seems to me, would not defeat the application of the equitable doctrine under consid-grantee, Towell, had already assumed the eration. In other words, if the grantee of the conveyed parcel expressly assumes the payment of the mortgage debt, such assumption obviously enters into the consideration for the conveying, and defeats the application of the rule or equity of inverse order of alienation. So, if it appears in any other way that the consideration, in whole or in part, was not paid because of the parcel being conveyed subject to the lien of the mortgage debt, the rule is also defeated to the extent of such nonpayment of consideration. But, if it appears that the full consideration for the conveyed parcel was actually paid to the mortgagor grantor, the grantee is entitled to call upon the remaining mortgaged land owned by the mortgagor grantor to pay the mortgage debt before the conveyed parcel shall be attacked, and this quite irrespective of the nonexistence of any express covenant of warranty of title. This is my understanding of the doctrine laid down by Pomeroy (paragraphs 1224 and 1225) and by Mr. Justice Reed in Thompson v. Bird, 57 N. J. Eq. 175, 40 Atl. 857.

payment of the mortgage debt. This statement, it seems to me, in view of the fact that the mortgage was a lien upon the tracts, constituted an express extension of the previous assumption upon the first tract to the second and third tracts. It was in effect an assertion by the mortgagor grantor, "I will not remove the lien of the mortgage debt from these two tracts, as my acceptance of the full consideration would otherwise oblige me to do, because the burden is upon you to do so as a result of our previous transactions," and it was an agreement by the grantee that the mortgagor grantor should not be called upon to so remove it; but, on the contrary, he (the grantee) should be subject to the burden of either doing so, or holding these two tracts, also, in addition to the first tract, subject to the burden of the whole mortgage debt. This being so, of course, the second mortgagee took with full notice, and can no more invoke an equity expressly bargained away than his mortgagor, who bargained it away, could invoke it.

I coucur in the reversal, therefore, but for the reasons above stated.

GARRISON, J. (concurring). My vote to reverse is based solely upon the equitable rule stated by Prof. Pomeroy in the concluding paragraph of section 1225 of his work on Eq

Assuming that the language of these conveyances sufficiently establishes the payment of the full consideration, this view would lead, it seems to me, to an affirmance of the vice chancellor's decision, if there were no express assumption of the mortgage debt in the conveyances of tracts second and third inuity Jurisprudence, and quoted at length by this case, because I cannot see how the doctrine of "avoidance of circuity of action" The deeds on record at the time the second could have the effect against the second mort- mortgage was taken gave notice, by their gagee of interposing before his lien the per- terms, of the equities subsisting between the sonal obligation of Towell upon the collateral mortgagor and his grantee, by which the dibond which the latter gave when he purchas-rect, and not the reverse, order of alienation ed tract first. As was said by Mr. Justice obtained. This was notice that the second 82 A.-55

Judge VREDENBURGH in his opinion.

mortgagee would have no right to marshal | from the floor, and constructed of 2-inch iron securities as against the land not included in his mortgage. The decree, giving such right to the second mortgagee, who was also the holder of the first mortgage, was therefore

erroneous.

(82 N. J. L. 587)

BUTLER v. FARR & BAILEY MFG. CO. (two cases).

piping, not only as to the railings, but also as to the uprights, which, at the point where they rested on the floor, were provided with a flat foot 6 inches in diameter, on which the weight of the appliance rested. At each of its ends the railing that ran parallel with the wall made a right angle and ran for a shorter distance towards the wall, thus inclosing the shafting on three sides; the wall constituting the fourth side. At the time

(Court of Errors and Appeals of New Jersey. the motion to nonsuit was made it did not

March 4, 1912.)
(Syllabus by the Court.)
TRIAL ( 142*)-QUESTION FOR JURY-INFER-
ENCES FROM EVIDENCE.

Where the sort or degree of protection a given safeguard is intended or apparently designed to afford is a matter as to which different inferences may legitimately be drawn from the testimony, it is not error for the trial court to refuse to withhold the question from the jury.

[Ed. Note.-For other cases. see Trial, Cent. Dig. 337; Dec. Dig. § 142.*]

Error to Supreme Court.

Actions by Lawrence Butler and by Walter Butler against the Farr & Bailey Manufacturing Company. Judgments for plaintiffs, and defendant brings error. Affirmed.

Gaskill & Gaskill, for plaintiff in error. Stackhouse & Kramer, for defendants in er

ror.

GARRISON, J. Two writs of error bring up two judgments of the Supreme Court, affirming two judgments of the Camden circuit in actions brought by a father and his minor son for injuries received by the latter.

The Supreme Court found no error in the trial proceedings. Inasmuch as the refusal of the trial court to grant a nonsuit or direct a verdict is mainly relied upon for reversal, it is necessary to consider what facts the jury could properly find from the testimony, or, since there is a judgment, what facts the jury presumably did find. Such facts upon error constitute the state of the case to which the appropriate legal principles are to be applied.

appear whether or not the feet on which the railing rested were fastened to the floor; but it might have been found from the testimony that they appeared to be, or even that they were intended to be. When the motion for a direction was made, there was testimony that the feet were not secured to the floor, but were kept in place solely by the weight of the structure. A fellow workshafting that was inclosed by this railing, man having accidentally been caught by the

young Butler reached between the two railings and seized him, at the same time holding on with his other hand to the top railing, which either fell over with him or moved toward the shafting, so that he also was caught by it and injured.

The grounds on which the motion for a nonsuit was rested were not stated, and in consequence have to be gathered from two or more printed pages of argument. The grounds on which this argument seems to be based are, first, that there was no occasion for the plaintiff to interfere; and, second, that there was no negligence on the part of the defendant. The direction of a verdict was asked upon these grounds and that of contributory negligence.

The points, however, relied upon in this court, are:

(1) That the master was not required to guard against possibilities that could not reasonably be anticipated;

(2) That there was no evidence from which the jury could find that the railing was designed to withstand a pull upon it; and

(3) That the trial court erred in leaving the question of the defendant's negligence

Thus regarded, the facts to be dealt with to the jury. are these:

Butler the younger was a workman of the defendant at a machine operated by shafting that, at a height of 2 feet and 2 inches from the floor, ran parallel with and 1 foot and 10 inches distant from a wall. In front of this shafting for its whole length, and at a distance of 2 feet and 10 inches from the wall, ran a railing, which was consequently parallel with the wall, leaving a space of 1 foot between the railing and the shafting. This railing, which was ostensibly and admittedly intended for some sort of a safeguard, was 3 feet and 6 inches in height, with a lower railing 2 feet and 10 inches

The situation is very like that in Smith v. Mountain Ice Company, 74 N. J. Law, 26, 64 Atl. 956. In that case Smith, by the slipping of an icẹ hook on which he was making traction, fell backward against the railing of a bridge on which he was standing, which was torn from its post by the impact, inflicting injuries for which he recovered a substantial verdict. Upon a rule to show cause the Supreme Court set this verdict aside, upon the ground that the trial judge had not left it to the jury to say whether or not the rail had been provided to secure the plaintiff in case of accidents such as that which occurred, or whether or not its construction