Johnson v. Johnson

The position contended for by the com*562plainant’s counsel — that a mortgagee may release a part of the premises mortgaged to him, and throw the whole burden upon the remaining part, notwithstanding the remaining part has been subsequently mortgaged to another whose mortgage has been recorded, if the first mortgagee had not actual notice of the second mortgage — cannot be maintained.

In this case, the release was not made until after Olcott had obtained a decree on his mortgages, and after the two lots covered by them were advertised for sale, and after the complainant in this case had notice of that advertisement. A reference will be ordered to ascertain the value of the lots released. The value of the lots 11 and 12 may also be ascertained. Lots 1 and 2 cannot be reached by the complainants, unless lots 11 and 12 be insufficient to pay what may be found to be properly charged on the lots not released.

Order accordingly.