Borst v. Boyd

The Assistant Vice-Chancellor. When the original bill was filed, the lands in question which were not claimed by Zeilley, were possessed by or under Alexander Boyd ; and William A. Boyd claimed that he had a right therein, not only as a tenant, but as a purchaser, in consequence of his paying Boyd and Shepherd the debt for which John D. Lawyer’s mortgage bad been assigned to them. The interest of William A. Boyd has not been divested, and my first inquiry will be directed to Martin I. Borst’s right to redeem, as against the two Boyds. There is no doubt but that David Lawyer, Jr., entered into the possession of the lands, as mortgagee. He had no other interest or pretence of right at that time. Alexander Boyd succeeded him in that possession, and with no other or better claim to the lands than D. Lawyer, Jr., had when he entered. The conveyances to A. Boyd subsequently, under the sheriff’s sales against the mortgagee, D. Lawyer, Jr., gave Boyd no better or larger estate than the absolute assignment of the mortgage conferred on him. There is no validity in the objection, that the remedy of Borst was barred by lapse of time. The mortgagee’s possession commenced in or about May, 1820. On the 3d of May, 1825, A. Boyd assigned the mortgage — 507 — under which he held the possession, to Messrs. Ingold, Boyd, and Shepherd; and on the 23d of October, 1830, the mortgage was re-assigned to W. A. Boyd, with Alexander Boyd’s assent: These transactions are decisive that the mortgage was redeemable as late as October, 1830; and although the mortgagor was not a party to them, he may avail himself of the evidence which they afford of the nature of the mortgagee’s interest and claim. (Smart v. Hunt, 4 Ves. 478, note a; Hardy v. Reeves, 4 ibid. 466, 479; and S. C. nomine, Hansard v. Hardy, 18 ibid. 455, 459.) The original bill was filed in December, 1836, so that the limitation prescribed by the revised statutes, was no bar, even if that were applicable. In Williamson v. Field, which was a similar case, (decided July 21, 1845,)(a) I held that the revised statutes did not apply. Another objection to the claim made by the original bill, is that when John D. Lawyer conveyed the equity of redemption to Martin I. Borst, in January, 1836, the lands were held adversely to the grantor. This position I think cannot be maintained. A mortgagee’s possession, at any period within twenty years from his entry, so far from being hostile to that of the mortgagor, is in equity deemed a possession in trust for him. (4 Kent’s Com. 167, 2d ed.; Cholmondeley v. Clinton, 2 Mer¡vale, 361.) In England, where a mortgage conveys the entire legal estate, the possession of the mortgagor was never deemed adverse, so as to interfere with the mortgagee’s conveying or assigning the estate, so long as his remedy on the mortgage was not barred oy lapse of time. At the time of the conveyance from John D. Lawyer to Borst, the former had an undoubted right to redeem. How, then, could Boyd’s possession at that time be considered as adverse ? The mortgagee’s possession is just as consistent with the mortgagor’s title, as is the possession of the latter with the title and interest of the mortgagee. .One as well as the other, may in time ripen into a valid hostile title, but the intermediate possession cannot — 508 — be deemed adverse, so far as to defeat or impair transfers of the existing title of the party out of possession. A mortgagee may work a disseisin, but I apprehend within the period requisite for barring redemption, that can only be done by some direct, open and unequivocal act, in hostility to the title of the mortgagor. On this point, I refer to Anon. (3 Atkyns, 313 ;) Hovenden v. Lord Annesley, (2 Sch. & Lef. 637;) Cholmondeley v. Clinton, (2 Mer. 171, 357 to 360;) Fenwick v. Macey’s Executors, (1 Dana, 280, 297, 299, 301.) These views dispose of the defences interposed by the Boyd’s. Zeilley makes no objection to a decree which will leave him undisturbed in his grant from Alexander Boyd ; and the complainants assent to affirm the sale to Zeilley, and to hold Boyd responsible for the purchase money. At the date of this conveyance, (January, 1831,) Alexander Boyd was in equity, the principal mortgagee. The re-assignment of the mortgage to W. A. Boyd, gave him no greater interest than to the extent of his advances to Boyd and Shepherd. I therefore think it is competent for the complainants to ratify the gale to Zeilley, in the mannér proposed. But in so doing, they can no longer claim an account for the rents and profits of that portion of the lands mortgaged, from and after the conveyance to Zeilley. The purchase money will properly apply as an extinguishment of so much of the mortgage debt, at the date of the deed. Second. The next inquiry relates to the right of the complainants in the first supplemental suit. The question is distinctly presented in reference to the Boyd’s, whatever may be the case as to Ingold. Two objections are made to the title of Martin I. Borst’s assignees. In the first place, it is said that the premises were the subject of controversy in this court, at the time of the assignment, and were not in the possession of Borst. Also, that it was void by the provision against buying or selling the titles of persons not in possession of lands. (2 Rev. Stat. 691, §§ 5 and 6.) What I have already said in respect of J. D. Lawyer’s conveyance to Borst, disposes of this objection. And I might add, as to the sixth section of the statute 'against champerty, that an assignment for the benefit of creditors, can scarcely be deemed a — 509 — buying, or selling, or a promise or covenant to convey, within the meaning of the statute. Next, it is said that the assignees took no estate, but only a power in trust, by the deed to them ; and that the terms of the conveyance were not sufficient to pass the right or interest which Borst had in these premises. The former position is taken on the clause which reserves the surplus to the assignor, after paying all his debts. Inasmuch as the law would give this to him, without any provision in the assignment, it is manifest that its insertion cannot make the instrument any worse than if it were omitted. As to the other ground, it is urged for the reason that the assignment describes and conveys “ real estate and personal property” only; whereas Borst’s right in these premises was a mere equity, growing out of the realty, but having no characteristic of a legal right or title to land. My view of Borst’s right is wholly different. It is true it was the equity of redemption, but in our law that is a legal estate, until it is barred by foreclosure or otherwise, which may be conveyed as land, and sold on execution, and in which a widow is entitled to dower. Neither the lapse of the day of payment, or the mortgagee’s being in possession, affect the nature of the mortgagor’s estate. Whether a mortgagee by those events, also has an estate upon which a judgment may become a lien, is a question arising in another part of this case. I am satisfied therefore that Martin I. Borst’s right and title vested in his assignees. Third. I now approach the second supplemental bill, and I meet the questions of form and of parties, which were raised in respect of both of the auxiliary bills. • Where a person having acquired the interest of a party to a suit, which is pending, thinks proper himself to file a supplemental bill; he must make all the other parties to the original bill, whether complainants or defendants, parties to his supplemental bill. (2 Barbour’s Ch. Pr. 69; 3 Daniell’s Ch. Pr. 165, 180; Binks v. Binks, 2 Bligh, 593; Feary v. Stephenson, 1 Beavan, 42.) Therefore, as Martin I. Borst retained a contingent interest-in the property, he was a necessary party in both of the bills — 510 — filed by his assignees. But this objection as to Borst, comes too late from the other parties, at the hearing. The second bill filed by the assignees, must be regarded as an original bill in the nature of a supplemental bill, as against Ingold, and indeed it was, as to him, a new suit. His title, although acquired pendente lite, came to him from the Mohawk Bank, through their judgment, which if it were a lien at all, was a lien before the original bill was filed, and was unaffected by that suit. The Mohawk Bank should have been a party to the original suit, if as Ingold claims, their judgment were a lien. (Story’s Eq. Pl. 188.) The defendant Ingold, having succeeded to their title, stands-in the same situation that the bank would have done, if the last bill had been filed against the bank, as still retaining the lien. (3 Daniell’s C. Pr. 176.) This being so, the proceedings and tes-' timony in the original suit, (except so far as they are introduced into the last bill,) do not affect Ingold, and cannot be read against him. (2 Barb. Ch. Pr. 85; 3 Daniell’s, 164, 189.) If Ingold had succeeded to nothing more than the interest which A. Boyd had at the commencement of the suit, a simple supplemental bill would have sufficed, and the defendants in the prior suit would not have been necessary parties. But as the case stands, I think they should be parties defendant with Ingold. (See 3 Daniell’s, 178, 179 ; 2 Barbour, 86.) There is the further reason for making them parties in this case, that W. A. Boyd claims an interest in the mortgage, which may conflict with that of Ingold, in decreeing redemption. The Mohawk Bank appears to be a necessary party, in respect of their judgment, in connection with the agreement on the sale, by A. Boyd to Lyon and others. The latter was made during the pendency of the suit, but the bank’s lien existing before the suit, was the consideration of the provision in their behalf in the agreements. This of course is on the assumption that there was a lien ; and Ingold’s claim under their judgment and sale having driven the complainants to make him a party, the Mohawk Bank is a proper party on the same ground. I do not determine the point as to the lien of the Mohawk — 511 — Bank judgment, at this time, because the suit against Ingold, being an original suit, must needs stand over to have the proofs made applicable to both the supplemental and the original suits. Some of the evidence before me applies to the suit against Ingold, but it cannot be read in the suits against the Boyd’s, and vice versa. In respect of Lyon and the other purchasers from A. Boyd, in 1839, a supplemental bill against such purchasers only, would have sufficed ; had they not become connected with the Mohawk Bank judgment. The decree to be entered in this stage of the suits, may declare the right of Martin I. Borst’s assignees to redeem the lands in question, as against the Boyd’s and the respective purchasers from A. Boyd, limiting it as to Zeilley, as I have heretofore suggested. And it may provide for the assignees amending their second supplemental bill, by bringing in the proper parties, and in such other manner as they may be advised, with leave to Ingold to answer anew; or the assignees may exhibit a new supplemental bill for that purpose. All questions between Ingold and the assignees, will be reserved. The only objection of a formal nature, which was taken in Ingold’s answer, is that the Mohawk Bank should have been a party to the original bill; but as this is well taken, and the difficulties in the way of a final disposition of the subject, have chiefly arisen from that omission; I think the complainants must pay to Ingold, the costs of the hearing, and of his preparation therefor.(a) Footnotes [(a)] Since reported, 2 Sand. Ch. R. 533. [(a)] In July, 1846, J. Ingold signed a consent that the complainants might take a decree for redemption, and for other relief as court might deem equitable, and waived any objection on the ground of the want of proper parties. A decree for redemption was made accordingly.