Morris & Co. v. Barker

SOMERVILLE, J. — One well-settled proposition of law compels the affirmance of the chancellor’s decree. That proposition is, that the interest of a mortgagee, although a legal title, is not subject to attachment, or sale under execution, at least before an entry for condition broken, with a view to foreclosure, even if it can then be done, — as to which we intimate no opinion. “This doctrine,” says Mr. Drake in his treatise on Attachments, “has been so frequently discussed and re-affirmed, that it mny be considered fully established.” — Drake on Attach. (6th ed.j, § 235. It is said in Jones on Mortgages, “The interest of a mortgagee can not be levied upon, or- attached for his debts, before foreclosure. Some of the earlier cases only decide that the interest of the mortgagee before entry is not attachable; but, as all the inconveniencies that would attend an attachment before entry continue until foreclosure is complete, the law seems to have become settled, that no attachment of the mortgagee’s interest can be made until foreclosure.” — 1 Jones on Mortg. (3d ed.), § 701. “It would be useless to permit the sale of the mortgagee’s legal title under execution,” observes Mr. Freeman, in his work on Executions, “if he were still to remain the holder of the indebtedness. The indebtedness, being a more chose in action, was not subject to execution.” — Freeman on Executions, § 184. These conclusions are fully supported by the authorities, [275] and by the reason of the law. The legal title of the mortgaged property, it is true, is vested in the mortgagee; but the mortgage itself is a mere incident of the debt, and intended as a security ; and the debt not being subject to execution, because a chose in action, no more ought the mortgage to be. If one execution could be levied on such an interest, any number could be with equal propriety; and the mortgagor, as well as the mortgagee, would thus be harassed by efforts to sever the debt from the security; which, if allowable, would lead to infinite embarrassments, and complicated litigation. The mortgagee’s right of redemption would especially be embarrassed. Said Chief-Justice Parker, in Blanchard v. Collum, 16 Mass. 345: “The difficulties of levying upon land mortgaged, to satisfy a debt due from the mortgagee, are insuperable.” And in Rickert v. Madeira, 1 Rawle, 325, the Supreme Court of Pennsylvania, as far back as 1829, after deciding that the interest of a mortgagee, whether the mortgage be legal or equitable, can not be taken in execution, and after reviewing the embarrassments attendant upon the contrary doctrine, said: “These difficulties have produced the almost universal opinion among the profession, that lands so situated are not subject to the debts of the mortgagee by execution ; and it is an argument,” the court added, “of no inconsiderable weight, that although mortgages are securities of such common occurrence, this' is the first attempt which has been made to subject the interest. of a mortgagee under a levy and execution.” A like observation might be made in this case, our own reports furnishing no case where it has ever been attempted to sustain such a sale. These views are fully sustained by the authorities. — Brown v. State, 55 Me. 520; Huntington v. Smith, 4 Conn. 235; Trapnall v. State Bank, 18 Ark. 53; Scott v. McWhirter, 49 Iowa, 487; Buck v. Sanders, 1 Dana, 187; Gooch v. Gerry, 3 Harr. (Del.) 280; Marsh v. Austin, 1 Allen, 235; Eaton v. Whiting, 3 Pick. 484; Nicolson v. Walker, 4 Brad. (Ill.) App. Ct. 404; Rickert v. Madeira, 1 Rawle, 325; Blanchard v. Col-um, 16 Mass. 345, supra; Drake on Attach. (6th ed.), § 235; 1 Jones on Mort. (3d ed.), § 701; Freeman on Executions, § 184. The cases of Downing v. Blair, 75 Ala. 216, and Welsh v. Phillips, 54 Ala. 309, do not conflict with these views. They were voluntary conveyances of-the mortgagee’s legal title, — not sales of a mortgagee’s interest under execution. We are of opinion that section 3209 of the present Code of 1876 was never intended to change this principle. This statute has been the law in this State for more than a third of a century, and has never been supposed to authorize the [276] sale of a mortgagee’s interest under execution; nor has such ever been the practice, so far as we are advised. Affirmed.