Collins v. Gibson

The opinion of the Court was pronounced by Hutchinson, C. J. It appears by the Bill of exceptions in this case, that the plaintiffs having a demand against Gibson, one of the defendants, attached, and, afterwards, levied upon Gibson’s equity of redemption of the premises in question, he having before mortgaged the same to one Ira Stewart. The plaintiffs claiming under this levy, the defendants object to it as irregular, it being not a levy [247] upon tbe land, but upon the equity of redemption in the same. The debt of the plaintiffs was so large, it swallowed up the whole equity of redemption of Gibson. There was, therefore, no need of such a description as would have been necessary, if the levy had left Gibson an interest remaining there. In such case, the levy must have been made upon some given undivided portion of the whole premises, one fifth &c. leaving, perhaps, an undivided fifth still belonging to Gibson. But as the debt of the plaintiffs took all Gibson’s right, and as the plaintiffs could not hold at all against Stewart, but their levy gave them the right to redeem from Stewart’s mortgage, and, when such redemption was made the whole title would be in the plaintiffs. This levy upon all the defendants equity of redemption is good under our statutes. See pages 80 and 210. The cases of Paine vs, Webster and Hathaway and Burt vs. Stoddard, cited by the defendants’ counsel have no application upon this point. In both these cases, the levy upon all the debtor’s right &c. was adjudged ill. But there was no way of ascertaining what that right or interest was, in either case ; nor did it appear what the appraisers considered it to be. There is no such difficulty in the present case. The officer’s return shows, that the appraisers considered Gibson’s interest to be what the records show it to be: to wit, the whole land, subject to an incumbrance, which they definitely describe. This objection to the plaintiff’s levy cannot prevail. The defendants also object to the decision against the defendant, Sargeant, holding him as in possession, notwithstanding his disclaimer. There are two answers to this objection. 1st. The case shows that there was testimony, tending to show Sargeant in possession, under the assignment of the lease, until the commencement of this suit; also testimony of his leaving the possession some weeks before that time. It might have been decided against him upon the weight of evidence. This would be a sufficient answer, unless a decision upon the other point may have prevented a decision upon tlfi-s; which is probable. 2d. The defendants liability to this action cannot be at all affected by his moving out of this shop and occupying another, with his lease continuing in full force, and [248] he continuing liable to pay rent. It is not very certain that his surrender of his lease would avail without an acceptance of such surrender by the lessor, or the assignor. It surely would require proof of good reasons for such surrender, to make the same, without acceptance put an end to the lease, and to his liability to pay rent. But there is nothing of this in the case. There is no surrender, nor any notice, that he was about to leave possession. The decision of the County Court, upon this point, was correct. Doolittle, for the defendant. O. Seymour, for the plaintiff. There was one exception taken by the plaintiffs, to a decision against them. They claimed the full amount of rents and profits ; and the Court decided, that they should recover nominal damages only. Their decision upon this point was correct. Also, Stewart, the mortgagee of Gibson, has a controlling right to the rents and profits. The plaintiffs have no right against Stewart but to redeem. If they take possession, they must pay him for the rents and profits until redemption. They recover in this action merely on the ground, that their title is good against Gibson and those claiming under him. But their title is not good against these for the damages, which belong to Stewart.— To him these defendants are liable. And it does not differ the case, whether Stewart insisted upon these rents, when he took judgement, or the same were then forgotten, or whether he intended to relinquish the same. If it was a mistake, possibly he might obtain a new trial on some terms or other, and still include them in his judgement.— if he yielded them voluntarily, it was for the benefit of the defendants, not of the plaintiffs. The plaintiffs are not liable to Stewart for the rents and profits, accruing before they obtained possession. After that they will be liable until they redeem. The case presents no date of Stewart’s mortgage or judgement. But the counsel of both parties treat them as prior to the commencement of this action; but consider the time of redemption as not having expired. So we treat the subject. The judgement of the County Court is affirmed.