Mellon v. Lemmon

Mr. Justice Sterrett delivered the opinion of the court, January 4th, 1886. Leaving out of view the claim of defendants, based on the deed of September 26, 1861, the plaintiffs, as next of kin and heirs at law of Robert Lemmon, deceased, were entitled to recover the undivided five-sevenths of the land embraced in this action of ejectment. Title in Robert Lemmon prior to date of the deed and heirship of plaintiffs to five-sevenths of any real estate of which he died seised appear to have been conceded by defendants; but their contention was that the deed aforesaid is an absolute conveyance, and hence it vested in Thomas Lemmon, under whom they claim an indefeasible estate of inheritance. On the other hand, plaintiffs contend that it is a defeasible convejmnce or mortgage given to secure payment of the $1,000 therein, named; that Thomas Lemmon was, therefore, merely a mortgagee in possession, and as such, he and those claiming under 'him have long since received from the net rents, issues and profits of the land, more than sufficient to pay the sum for which it was pledged as security. They accordingly requested the court to instruct the jury that the deed was a mortgage, and not an absolute conveyance. That request should have been granted. The instrument, on its face, is clearly a mortgage. The conveyance is expressly subject to the right of redemption by the grantor, Robert Lemmon. This reservation, or defeasance clause, is what gives character to the instrument, and reduces it to a mere security or mortgage; and there is nothing in the evidence dehors the instrument, to show that it is or was intended to be anything else. This materially affects the relation and rights of the parties, and hence the error into which the court fell in refusing to charge as requested was not immaterial. A mortgagee in possession, as was Thomas Lemmon the grantee in the defeasible deed, must account for the rents, issues and profits of the mortgaged premises, so that the net [65] proceeds thereof may be applied to payment of the sum for which the property was pledged as security. If the same be fully paid the mortgagor is entitled to possession ; if not, the mortgagee has the right to retain possession until out of the rents, issues and profits, or otherwise, the residue is paid. This equitable right of redemption in the mortgagor may be enforced in an action of ejectment, which, under our system of jurisprudence, is an equitable action, and may be employed as a substitute for bill to redeem. In such cases it is the duty of the jury, under the direction of the judge sitting as a chancellor, to ascertain how much the mortgagee in possession has realized from the rents, issues and profits. If they find he has received, or in the exercise of reasonable diligence should have realized enough to pay the sum secured, a general verdict for plaintiffs should be rendered; if not, a conditional or special verdict should be found, in such form that, upon payment of the residue, the mortgagor may, without unnecessary delay, obtain possession of the premises. In the case at bar, the course of trial should have been similar to that above indicated; and, mainly for the reason that it was not so, the judgment must be reversed and a new venire ordered. In September, 1869, eight years after the alleged conveyance, Thomas Lemmon, the grantee named therein, presented his petition to the court, setting forth that his brother Robert was a lunatic, seised of a farm, &c., and incapable of managing his estate. The inquest awarded on that petition found Robert was a lunatic, and had been for five years then past; that he was possessed of a tract of land worth $3,500, and of the yearly value of $100, clear of taxes, and that his next of kin were the petitioner and others. This inquisition having been approved and duly confirmed by the court, Thomas Lemmon was appointed committee, and as such gave approved security for the faithful discharge of his duties. It is very evident the land mentioned in the petition is the same that is described in the defeasible deed of September 26, 1861, and, in the absence of explanation, the averment in the petition as to ownership of the land, shows conclusively that it was not then claimed or owned by Thomas Lemmon, the petitioner. In connection with the fact that he makes no mention of any incumbrance, it is also strongly persuasive that he then had no claim on or interest in the land as mortgagee or otherwise ; but it is not conclusive. The first, second, and third specifications of error are sustained. Judgment reversed, and a venire facias de nove awarded.