Barron, Meade & Co. v. Paulling

A. J. WALKER, C. J. -The bill in this ease is to be regarded as filed by the assignee of an equity of redemption, for the purpose of redeeming the mortgaged lands. — Paulling v. Barron, Meade & Co., 32 Ala. 9. It appears very, conclusively, that the mortgagees were never in possession of the laud, until the recovery in the action of trespass to try titles'by Meade against the complainant ; and we have no evidence that.either of them ever received any rent for the land after that- recovery. Lesueur, the only witness who testifies on the subject* deposes that, the houses and fences having-.gone into decay,' he,- as the agent of the defendants,- permitted the coroplainant-to have the place as. a pasture; and we infer from the testimony that the complainant paid no rent. Upon this state of the case, the defendants’ are not chargeable with'rents, other than those recovered in the action of trespassto try titles. The mortgagee is-only responsible, in- a suit to redeem by the mortgagor or his assignee, for rents-actually received, unless he has been guilty of fraud-or willful neglect. — 3 Powell on Mortgages, 939 a; 1 Hilliard on Mortgages, 418, § 3. The crediting of the mortgage debt with the amount of rents received by one of the mortgagees, Was proper. It is conceivable that a mortgagee might-have a right-to the rents and profits of the mortgaged landderived from a source extrinsic and independent*of the mortgage,- If a mortgagee were by virtue of such a right to-receive rents, the sum so received could not be appropriated in abatement of.the mortgage debt. In this case, the mortgagee in fact had- no right to the rents and profits, except such a3 the mortgage gave,-- [2.] But itos- said, -that the judgment for the- recovery of the land, and tbe>rents by way of damages for its detention, was rendered in favor of one of the mortgagees, against the defendant; ,that a right of action, resulting from the mortgage, appertained to the two mortagagees jointly ; [297] that therefore a recovery by oüe mortgagee, by its intrinsic force, demonstrated that it was based upon a right independent of the mortgage; and that the complainant, being the party defendant to the judgment, Was estopped from controverting that inference from the judgment in favor of the single mortgagee. To this argument we can not assent. The judgment entry recites, that the defendant Voluntarily abandoned the possession of the land, and all claim of title to it; that the plaintiff had taken possession thereof p that thereupon, came a jury, who assessed the damages of plaintiff; and a judgment for the damages so assessed is rendered.. The court, in its considerakm est, adjudges nothing,, except that the plaintiff recover the assessed damages ahd costs ;• and the ascertainment by the verdict of the jury is not more extensive than the consideration of the court. The record, upon its face, is absolutely silent as to the source whence the -plaintiff derived Ilia claim. Judgments may be conclusive as to the facts necessarily involved in them. — Wittick v. Traun, 25 Ala. 317; Chamberlain v. Gaillard, 26 Ala. 504 ; Saltmarsh v. Bower, 34 Ala. 613. That the plaintiff in the judgment derived his claim to the damages recovered fronr-a source independent of the mortgage, is not necessarily* involved ih the judgment, or implied by it.- It-may as well comport with the supposition, that it was submitted to by»the defendant upon the idea that a right to recover'enured teethe plaintiff as a member of the partnership to which* the mortgage was given, or that the plaintiff had acquired-the interest of the other mortgagee. - The inference attempted to he forced upon the complainant!- from his submission-to-the assessment of damages,- -is not a necessary deduction, and he can not be precluded from" asserting the- contrary. As mortgagee, the defendant Mfeade had a-right to receive the rents and profits. We think his own answer-shows, that he had no other real right. - The pretense that-he had acquired a light by the-purchase at execution sale, is met with a fiat negation by the decision of this court when we before [298] passed upon it, for that decision declares the sale invalid.— 32 Ala. 9. One of the mortgagees having, by virtue of the judgment, collected from the complainant rents and profits, iflie sum so collected is a proper credit on the mortgage (debt, in -taking the account of the same requisite to authorize a redemption. , * [3.] The court erred in crediting upon the mortgage debt the sum paid in discharge of the costs'adjudged against Paulling. We know of no principle, upon which either a mortgagor, or his assignee, can impose upon the mortgagee the burden of reimbursing costs, which may have been incurred in an unsuccessful attempt to defend the possession of the land, or resist the collection of rents and profits. The mortgagees are not entitled to have from the com.pkinant any ie,e.s which they may have paid their attorneys. [4.] We thipk a'permanent injunction of the judgment against ,;fhe .-complainant for cutting timber trees ought to have beeUigranted, in such a manner as to become operative upon tihe discharge of the mortgage debt, and the (Consummation of the ¡redemption by the complainant. A (Comparison mf the parts of the bill and answer which speak.of the judgment, leads ns to the conclusion, that, under-the rules of pleading, the fact that the judgment was founded on pepalti.es for cutting timber must be regarded as established. The mortgagee, standing by the law in the light of a bailiff for the mortgagor or his assignee, must be chargeable with whatever profit he received by virtue of his mortgage title. — 3 Powell on Mort. 946 ; 1 Hilliard on Mort. 417. Penalties for cutting timber from the mortgaged premises constitute a profit, with which one standing in the attitude of .a bailiff is chargeable. The plaintiff in the judgment had, in fact, no other title than that of mortgagee ; and, for reasons already stated in reference to another judgment, we decide, that the judgment founded upon the cutting of timber, in the name of one of the mortgagees, does not conclusively imply that the plaintiff had a title independent and extrinsic of his character of mortgagor,' If the plaintiff in the judgment were to re [299] ceive payment of it, it would be appropriated by the law" to the discharge, pro tanto, of the mortgage debt; and therefore, if the complainant discharges that debt, the judgment ought to be perpetually enjoined, except as to the costs; but the perpetual injunction ought not to be operative, until the discharge of the mortgage debt. [5.] There was nothing in the settlement, upon which the reduction of the judgment was based, which precludes the complainant from setting up his equitable rights in this case. That settlement is restricted to the matters 4n controversy in that particular suit, which pertained to the legal, not to the equitable rights of the parties. On the appeal by the complainant, the chaqcellor’a decree is affirmed; on the appeal by the defendants, the decree is reversed, and the cause remanded.