Brooke v. Bordner

Opinion, Mr. Justice Mitchell : The learned referee accurately perceived and stated the general effect of the transaction, but, failing to give due weight to the distinctions between legal and merely equitable rights, he denied plaintiff the remedy to which he was entitled. Bordner bought land, received a deed, ahd thus became the legal owner. While thus the legal owner, he made a mortgage [479] to Brooke, duly executed and recorded. Brooke thus acquired a lien on the land, perfectly good against Bordner and every one claiming under him, and having brought suit on his mortgage, what is there to stand in the way of his recovery? So far as Bordner and his assignee are concerned, nothing. Bordner mortgaged all the title he had to Brooke, and when he subsequently made an assignment, the assignee took nothing but an equity of redemption, because his assignor had nothing else to give. As between Brooke and the assignee, the former had an equity at least equal in force and prior in time, and had his legal right in addition. So far, therefore, as this is a scire facias against Bordner and his' assignee, it is the ordinary case of mortgagor and mortgagee, and there is nothing to prevent judgment and execution in the ordinary course of law. But the scire facias being with notice to the terre tenant Noil, the latter is entitled to come in and make defence pro interesse suo. It is found by the referee, and uncontested, that Noll made an agreement with Bordner, at the time of the latter’s purchase, verbal then, but subsequently reduced to writing, by which Bordner was to take the title, subject to the right of Noll to have it conveyed to him, upon the payment of a certain sum of money. A portion of this sum has been paid, and it is agreed that $1,600 remain due. Bordner’s title, therefore, was subject to a trust in favor of Noll, which made it, in effect, a mortgage, and it would be so treated in equity. The referee, therefore, held that it was only a mortgage, and could not be again mortgaged by Bordner to Brooke. But this is a purely technical objection, and can apply only to "a technical mortgage, and Bordner’s title was not technically a mortgage. In law, it was the full title to the land, and a mortgage of it was none the less a mortgage, because the title, in equity, and upon certain terms, was defeasible by Noll. If Noll had not happened to live on the land, Brooke would have taken a good mortgage against him, as well as against the rest of the world, but as his possession was enough to put Brooke upon inquiry, the latter took subject to Noll’s equity, whatever that was. If the suit had gone on in the ordinary way to judgment and execution, which, as we have seen, could not have been prevented by Bordner or his assignee, and Brooke had purchased the land at the sale, Noll could then have come [480] in by bill, to establish his equity and compel conveyance of the legal title on payment of the amount due. Having been brought in on the scire facias, his rights against tire plaintiff are neither greater nor less. His land is subject to the mortgage, with a right to he released on the payment, not of the amount of the mortgage, but of the balance due on the original agreement with Bordner. That balance having been due to Bordner as holder of the legal title, is now due to Brooke as mortgagee of that title; and as Noll had no equity to compel Bordner to convey the legal title without payment of the balance due, so now he has no equity to compel a release of his land from the mortgage, without payment of the said balance to Brooke. Upon such .payment, however, Noil-will be entitled not only to a release of the mortgage by Brooke, but also to a conveyance of the title by Bordner, or whoever may.then stand in his place. Judgment reversed, and record remitted, with directions to enter judgment for plaintiff Brooke against defendant Bordner, and terre tenant Noll, for the amount of the mortgage, with interest and costs, said judgment to be ' released and discharged as to Noll, terre tenant, on payment of the sum of f1,600, with arrears of interest, and costs.