Toomer v. Randolph

BRICKELL, C. J. A mortgagee, if there is not in the mortgage a stipulation to the contrary, or a reservation by the mortgagor of possession until default in the payment of the mortgage debt, has the immediate right of entry, and may eject the mortgagor or his tenants.—Duval v. McLoskey, 1 Ala. 737; Welsh v. Phillips, 54 Ala. 309. The theory of a mortgage, prevailing in this State, is that, at law, it creates in the mortgagee a direct, immediate estate in the land — afee simple, unless other toise expressly limited. The estate is conditional — annexed to the fee is a condition, which may defeat it. If the mortgagor, not having reserved the right of possession until default in the performance of the condition, remains in possession, he is the mere tenant at will of the mortgagee. After the law-day, and default in the performance of the condition, the estate vests absolutely in the mortgagee — the fee is freed from the condition annexed to it. Nothing remains in the mortgagor but the equity of redemption, of which, as between mortgagor and mortgagee, courts of law do not take notice. Before default, all that remains in him is the right to perform the condition, and thereby restore his original estate.—Paulling v. Barron, 32 Ala. 11; Barker v. Bell, 37 Ala. 358; Welsh v. Phillips, supra. In courts of equity, the theory of a mortgage is, that until foreclosure it is a mere security for a debt, the mortgagor continuing the real owner of the fee. Prom this theory results the general principle, that a mortgagee in possession, before or after default in the payment of the mortgage debt, and before foreclosure, is a trustee of the rents and profits for the mortgagor, and bound to apply them in extinguishment of the mortgage debt.—Davis v. Lassiter, 20 Ala. 561; 2 Wash. Real Prop. 221, § 9. All reasonable expenditures for taxes, necessary repairs, and other necessary expenses incurred on account of the estate, the mortgagee is allowed to retain from the rents and profits; and it is the balance only which may be applied in extinguishment of the mortgage debt. An accounting is necessary to the ascertainment of the balance. The law does not apply the balance of the rents and profits to the mortgage debt; for, at law, they accrue to the mortgagee, as the owner of the legal estate. It is in equity only the application is made, in the nature of an equitable set-off, and as an incident to the right of redemption.—Hubbell v. Moulson, 53 N. Y. 225. 2. If it is admitted that the mortgagor, notwithstanding the second mortgage to the appellants, has a right to compel [361] the application of the rents received by the appellee while in possession, to the payment of the mortgage debt, the remedy is exclusively in equity, and is incidental to the right of redemption. In a court of law, the appellee is regarded as having received only and simply the issues of his own estate. A garnishment is strictly a legal proceeding, operating only on the rights of the defendant in attachment or judgment, which he could in an action at law enforce in his own name. It can not be converted into a method of drawing within the jurisdiction of courts of law matters and rights of purely equitable cognizance.—Harrell v. Whitman, 19 Ala. 135; Roby v. Labuzan, 21 Ala. 60; Godden v. Pierson, 42 Ala. 370; Henry v. Murphy, 54 Ala. 246. What may be the rights of the appellants, as subsequent mortgagees, can not be considered or determined in the present proceeding. A garnishment is not a remedy for the enforcement of any cause of action vesting only in the creditor suing it out. Its whole scope and operation is to subject legal demands recoverable only by the debtor, or property of his which is subject to execution.—Henry v. Murphy, supra; Thompson v. Wallace, 3 Ala. 132. There is no error in the record, and the judgment is affirmed.