Scripture v. Johnson

Hosmer, Ch. J. The determination of the superior court, I presume, proceeded on the ground that the debt of Alpheus Scripture being less than three hundred and thirty-five dollars, the court had not jurisdiction of the cause. The criterion of jurisdiction was mistaken. The value of the land sought to be redeemed was greater than the sum just mentioned ; and that gave jurisdiction to the superior court. Stress was undoubtedly laid on the levy of the execution obtained by Daniel Johnson, with a view to take the equity of redemption remaining in Alpheus Scripture; but, on attention to the mode in which the levy was made, it obviously was not legal. The execution was levied pn a certain part of the land mortgaged, the legal title to which was not in the execution debtor, but in the mortgagee ; and the land was appraised and set off, as if it had been unincumbered. The execution should have been levied on the equity of redemption, and that should have been set off to the creditor. Punderson v. Brown, 1 Day 93. There is no doubt as to the right of the plaintiff to redeem the whole of the premises mortgaged; but as he who will have equity must do equity, it must be on condition not only of paying the sum charged upon the land, but the debt collaterally due to the mortgagee. Powis v. Corbet, 3 Atk. 556. 1 Mad. Chan. 424. 2 Swift's Syst. 430, 1. A question has been much agitated in the case, which is not at all involved in its determination, and on which the expíes [214] sion of an opinion would, at best, be an obiter dictum ; that is, whether the levying on part of an equity of redemption constitutes an irredeemable transfer of the property, or is merely a lien. I refen to the subject, without the intention of discussing it, or giving a decided opinion upon it. I would not have it understood, that, in my judgment, there can exist an essential difference between the appropriation, by execution, of the whole of an equity of redemption, and of part of it. The legal effect, one would think, must be the same, if from the same premises, in law, as in logic, the same must be the result. The other Judges were of the same opinion, except that Chapman, J. very forcibly expressed his dissent to the doctrine, suggested, by the Chief Justice, on the last point. Judgment reversed.