McConeghy v. McCaw

WALKER, J. — It is declared by the Code, (§ 2455,) that executions may be levied on an equity of redemption, in either land or personal property, and that when any interest less than the absolute title is sold, the purchaser is subrogated to all the rights of the defendant, and subject to all his disabilities. There certainly remains in one who absolutely conveyed a slave, as a mere security for the payment of a debt, “an equity of redemption.” Chancellor Kent, in reference to conveyances absolute in form, yet designed to have effect as mortgages, says: “When it [450] is once ascertained that the conveyance is to be considered and treated as a mortgage, then all the consequences, appertaining in equity to a mortgage, are strictly observed, and the right of redemption is regarded as an inseparable incident.” — 4 Kent’s Com. 143. This court, in many decisions, has declared an absolute conveyance, intended only as a security, to be in effect a mortgage, with an equity of redemption in the party making the conveyance. Parish v. Gates, 29 Ala. 254; English v. Lane, 1 Porter, 328. The interest remaining in one who has made an absolute conveyance for the security of a debt, is an equity of redemption, and certainly within the letter of the statute. Looking beyond the letter, wo find no sufficient reason for the conclusion that it is without the spirit of the law. It is true that such an equity of redemption was precluded from the cognizance of a court of law by a rule of evidence, and was susceptible of establishment only in a court of equity. But we cannot say that the legislature designed to observe this wholesome rule of evidence, and to restrict the operation of the statute to equities of redemption evidenced by writing. In construing the part of the law which relates to equities of redemption, we must look at the first clause found in the same section, which authorizes a levy on real property, to which the defendant has a legal title, or a perfect equity, having paid the purchase-money. Under it, the interest of one who has made a parol purchase of land, paid the purchase-money, and entitled himself to a specific performance, might be sold •under execution; yet the statute of frauds has always been an insuperable barrier to establishment by parol, in a court of law, of a purchase of land. The purchaser by parol, who has paid the purchase-money, and is entitled to a specific performance, certainly has a perfect equity, and his interest must necessarily come within the operation of the statute. Since the legislature has, in the first clause of the statute, disregarded the distinction, as to the evidence requisite to prove a purchase of land at law and in equity, we are led to impute to it a similar design in the last clause. [451] There seems to be a similar statute in Kentucky; and it is held by the court of appeals in that State, that the sheriff, being by the law authorized to levy and sell, must, of necessity, have the right to take the property into his possession, and exhibit it at the sale. — Philips v. Morris, 7 J. J. Mar. 279; McIsaacs v. Hobbs, 8 Dana, 270. The same right must be allowed the sheriff in this State; for, without taking possession, he could not levy and sell. Whether it would be the duty of the sheriff, after the sale, to restore the property to the mortgagee, if in his possession at the time of the levy, it is not necessary for us in this case to inquire. 2. The court charged the jury, that if the plaintiff’s title was a mere mortgage, and she knew it to be so when she paid the money in consideration of which she obtained the title, then she could not recover in the action, although the defendant had received all the purchase-money at the sheriff’s sale. Because it was lawful for the sheriff to levy upon and take possession of the property for the purpose of the sale, and for the defendant to cause him to do so, no cause of action accrued to the plaintiff, against either the sheriff or the defendant, in consequence of the levy and taking of the property. The charge was, therefore, correct, unless some subsequent act made the defendant a tort-feasor. Now, although the sheriff may levy upon and take into possession mortgaged personal property, by virtue of a fieri facias against the mortgagor; yet the equity of redemption is alone liable to levy and sale. If he should sell the entire interest in the property, his sale would include the right of the mortgagee, as well as of the mortgagor. The' evidence in this case conduces to show, that the sheriff did not restrict his sale to the equity of redemption, or to such interest as might be in the defendant in execution, but sold the entirety of the property in the negro. The court could not, therefore, assume that the sheriff did not sell the interest of the plaintiff as mortgagee, as well as the interest of the defendant as mortgagor. If he did so, he was a wrongdoer in reference to the plaintiff j and liable in an action of trover, upon the principle settled in the cases of Smyth [452] v. Tankersly, 20 Ala. 212, and Parminter v. Kelly, 18 Ala. 716. — See, also, O’Neal v. Wilson, 21 Ala. 288; White v. Morton, 22 Verm. 15; Melville v. Brown, 15 Mass. 82. The evidence also conduces to show that the defendant procured the sheriff to make the sale which he did make, by indemnifying him, and received the entire purchase-money arising from the sale of the entirety of the property. IJpon those facts, the defendant would be equally with the sheriff guilty of the conversion. — 1 Chitty on Pleading, 79, 80; Calkins v. Lockwood, 17 Conn. 154; Clifton v. Grayson, 2 Stew. 412. 3. We regard the question of the right of a feme covert to maintain an action of troyer, for the conversion of her separate estate, as settled by the decision in the case of Pickens v. Oliver, 29 Ala. 528. The judgment of the court below must be reversed, and the cause remanded.