Page:Federal Reporter, 1st Series, Volume 4.djvu/289

 OONNECTICUT MOT. LIFB IKS. CO. V. SCAMMON. 275 �equity will considër that as done which ought to have been done, and must therefore, so far as the interests of the non- consenting mortgagors are eoncerned, charge complainant with this fund aud treat it as operative to satisfy the mort- gage pro tanto. �The oase at bar is distinguishable from Gordon v. Ware Samngs Bank, 116 Mass. 588, which was cited by the learned «ounsel for complainant on the argument. That was a case where mortgaged premises were injured by fire, and the amount of the loss was paid by the insurer in pursuance of its agreement with the mortgagor to the firbt mortgagee, who subsequently paid the amount to the mortgagor to be applied in repairing the premises, so as to make them as valuable as bef ore the fire ; and in this oase it was held, under the f acts, that the holder of a second mortgage had no equity to bave the amount so reçoive d applied in reduction of the debt seeured by the first mortgage. The facts were that at the time the first mortagee received the insurance money the mortgage debt was not due, and the mortgagor did not con- sent to the application of the money on the mortgage; and, moreover, and as a controlling feature of the transaction, the money was applied by the mortgagor to the restoration of the impaired security, for the benefit alike of ail parties in- terested. These cireumstances, of course, vitally affectedthe equities of the second mortgagee. �The point was made on the argument that the insurance money could not be applied on the mortgage debt withôut re- ducing the liability of the defendant Soammon equally with that of his co-obligors on the bond, which would be manifestly wrong. And the question was put, where can the line be drawn in the proposed application of this money in reduction of a lia- bility which is joint, and which is seeured by the pledge of in- terests that are undivided ? The answer is that the rules of equity praetice are sufficiently flexible to meet the case. The life estate may be charged with the same burden of liability as it was originally chargeable with, added to which is the persOnal liability of the defendant Scammon; and the estate of the owners of the fee may be charged with the proper proportion ����