Weaver v. Toogood

Shankland, J. Admitting that the assignment made by Henry B. Weaver to Ezra Weaver, after the filing of the bill in this cause, conveyed to the latter all the right of the former in the subject matter of this suit; and that Ezra is now the proper-party to prosecute the same, it appears to me there are insuperable difficulties in the way of a decree in favor of the complainants. The complainants purchased in the 63 acres covered by the mortgage to Burr, on the sheriff’s sale, by virtue of then-several executions, on the 3d of July, 1845, at an amount sufficient to satisfy all those executions, leaving a surplus to go to the judgment debtor. The complainants then ceased to be the judgment creditors of Chapman Fulkerson, and became the purchasers of the equity‘of redemption of the sixty-three acres. [Jackson v. Cadwell, 1 Cowen’s Rep. 622. Forsyth v. Clark, 3 Wend. 637, 655.) Several important, and in this case decisive results flow from the above position. 1. The complainants cannot attack the [241] conveyances to Stephen Fulkerson, nor the mortgage taken back, nor any of the dealings between Chapman Fulkerson and Toogood, on the allegations of fraud. (3 Wend. 637.) 2. Nor can the complainants call upon Chapman Fulkerson to pay the mortgage to Burr, or his assignee; because by the purchase they made, with knowledge of the prior mortgage, they are supposed to have bid no more than the equity of redemption was worth; and the land itself, as between the complainants and Chapman Fulkerson, became the primary fund for the payment of the mortgage debt. (Heyer v. Pruyn, 7 Paige, 465. McKinstry v. Curtis, 10 Id. 503. Tice v. Annin, 2 John. Ch. Rep. 125.) But if Toogood were forced to collect the Burr judgment out of the lands sold to Stephen Fulkerson by Chapman Fulkerson, it would deprive Chapman Fulkerson, indirectly, of the benefit of this principle; because he having conveyed the forty-seven acres to Stephen, with covenants of warranty, would be liable to respond to him for any failure of title, thus warranted. But admitting that the complainants were judgment creditors, and that Toogood had liens on two funds, for the security of the same debt, viz. the mortgage on the sixty-three acres, and the judgment on the forty-seven acres, and that the complainants could reach but one of those funds, viz. the sixty-three acres; still, as Stephen Fulkerson purchased the forty-seven acres before the complainants obtained their judgments and made their purchase of the sixty-three acres, it would be contrary to equity, to deprive Stephen of the benefit of his prior purchase, for the sake of subsequent purchasers. The true rule as applicable to persons thus situated is, prior est tempore, potior estjure. If Stephen Fulkerson were not a bona fide purchaser, I admit this rule would not apply; and in that case I should feel no difficulty in setting aside the return of the deputy sheriff, of nulla bona, on the Burr execution, as false, or in enjoining Toogood against foreclosing the mortgage until he had exhausted his remedy on his judgment. But I am not prepared to adjudge that conveyance void for fraud, on the evidence submitted to me. The testimony shows, that he labored for [242] his father faithfully, as a hired servant, for over six years, and that his wages, together with what he has paid and assumed to pay to the creditors of his father, amounts to the purchase money of the lands conveyed to him. But this cause, in my judgment, stops short of that inquiry. The Burr mortgage being a valid lien, and being known to the complainants, at the time of their purchase, their subsequent judgments were liens on Chapman Fulkerson’s equity of redemption only; and their interest derived from the sale on the executions issued on those judgments, cannot now be claimed to be of a more extensive title. It is very probable that the complainants thought they were purchasing the fee, and they may have bid a price accordingly; and if they were induced to do so by misrepresentation, or mistake, the court out of which their execution issued may relieve them, on a proper representation of the facts. Indeed a bare statement of the facts, as they existed at the date of the complainants’ purchase, will show how easily they could have been mistaken, as to the value of their purchase. Burr, at that time, had a judgment for the mortgage debt, which was a lien on the forty-seven acre lot, but which was not a lien on the sixty-three acre lot covered by the mortgage. The execution on that judgment was in the hands of the sheriff, with directions to levy; and the forty-seven acres were subject to that levy. Such were the circumstances existing on the 3d of July, 1845, when the complainants became the purchasers of the sixty-three acres, at the sale on their executions. And it is only by reason of the false return of the sheriff, subsequently made on the Burr judgment, that the mortgage given to Burr, and by him assigned to Toogood, can be foreclosed on the sixty-three acres. (2 R. S. 119, § 162. Id. 450, § 2. Id. 291, § 31.) But although the complainants could not foresee that the deputy sheriff would make such a return as would enable the owner of the Burr judgment to reach the land purchased by them, through a foreclosure of the mortgage, yet they were bound to know that Stephen Fulkerson, as a prior purchaser of the forty-seven acres, could come into a court of equity and [243] oblige the owner of the Burr mortgage and judgment, to sell the lands which had belonged to Chapman Fulkerson, in the inverse order of their alienation. (Clowes v. Dickenson, 9 Cowen's Rep. 403. Gill v. Lyon, 1 John. Ch. Rep. 447. Clowes v. Dickenson, 5 Id. 235.) They were also bound to know that as between themselves and Chapman Fulkerson, they obtained only his equity of redemption by their purchase; and that the land was the primary fund for the payment of the mortgage debt. And that if the owner of the Burr debt should attempt to collect it out of the mortgagor’s other property, or out of property which he had conveyed with warranty, he could call upon this court to protect his rights, and oblige a resort to the mortgaged premises for the satisfaction of that debt. (Jumel v. Jumel, 7 Paige's Rep. 591. Heyer v. Pruyn, Id. 465. Cox v. Wheeler, Id. 248.) The result of the above principles,, which are adopted and sustained by this court, is that the false return of the deputy sheriff, on the execution issued on the judgment in favor of Burr, against Chapman Fulkerson, has worked no injury to the complainants, inasmuch as this court, on the application of either of the Fulkersons, would have compelled a resort to the mortgaged premises for the satisfaction of the Burr debt, if the sheriff had attempted to sell the forty-seven acres purchased by Stephen Fulkerson. Although I do exceedingly regret the necessity which obliges me to come to the above conclusions, I must dismiss the complainants bill, with costs; but without prejudice to their rights in any future litigation.'