Derby Bank v. Landon

Hosmer, Ch. J. This action is brought against the defendant, as sheriff, for the default of his deputy, in not serving and returning an execution against one William Lewis. Under the plea of not guilty, the defendant claimed, that the plaintiff had foreclosed the equity of redemption to certain mortgaged premises, which were collateral security to the note on which judgment was rendered, and on which judgment the above execution issued; and had entered into the possession of them. The superior court adjudged this to be no defence. It is contended by the defendant, that the foreclosure mentioned, by operation of law, was an extinguishment of the judgment debt. It is unnecessary to examine the case, with a view to first principles. In this state, it has long been considered as established law, that a foreclosure and consequent possession, is in •the nature of satisfaction of a debt secured by mortgage. It is deemed an appropriation of the thing pledged, in payment of the •demand, for which it was security. This ancient and general understanding, has been recognized and confirmed by repeated decisions. Coit v. Fitch, Kirby, 255. M'Ewen v. Welles, 1 Root, 202. 2 Swift's Syst. 440. On this foundation estates [64] have been purchased ; and much inconvenience would, probably, arise, from the adoption of new principles, at this time, in subversion of titles founded on valuable considerations. Waiving the expression of an opinion on the legal fitness of the rule, in the absence of precedent, I am of opinion, that the law is settled, and ought not to be disturbed. The other Judges were of the same opinion. New trial to be granted.