Ford v. Philpot

Johnson, J. delivered the opinion of thé court. A bill in chancery was filed by the appellants in 1809, claiming, as the assignees of a mortgagor, a right to redeem from the assignees of the mortgagee, the property in question, on the payment of the sum due. The Chancellor passed a decree, by which he sustained the right to redeem, on the payment of the debt, together with the value of extensive permanent and beneficial improvements, placed on the premises by the assignee [314] of the mortgagee since he obtained the possession; and, unless the debt and improvements were paid by the time limited in the decree, the bill should he dismissed. From this decree an appeal is made. As the complainants did not accede to the terms of the decree, by the payment of the sum ascertained to be due, the latter part of the decree, (by which the bill was to be dismissed,) had its operation. On the appeal to this court, two questions arise. First—* Had the complainants a right to redeem? And Second—If they had, were they responsible for the improvements made on the premises? To form an opinion on the first question, we must necessarily turn our attention to the facts; as disclosed by the record. John Bussey, the proprietor of the property in question, in the year 1754, mortgaged the same to one Brian Philpot, and also executed another mortgage to one Larsh, in the year Í763. The mortgagor remained in the possession of the premises, and in the year 1773, conveyed the same, by an absolute deed, to Thomas Ford, under whom the complainants claim, who obtained, and held "the possession until his death in the year 1776; and on his death the complainants, his heirs at law, held the land until the year 1789. Philpot, the first mortgagee, transferred his interest to Larsh, the second mortgagee.- Before Larsh became entitled to the whole of the mortgage debt, Ford; who was Entitled to the equity of redemption, in the year 1786 adjusted the mortgage debt, and by way of collateral security gave his bonds for the amount then due. On the bond to Larsh a suit was brought, and on the return of two non ests, under the act of 1715, ch. 40, a judgment for an-attachment was obtained, the property in question returned as attached, á judgment of condemnation thereon rendered, on which a fieri facias issued in October 1789, and the property was sold to Samuel Hughes and John Swam Samuel Hughes, one of the persons to whom the sale was made, in the year 1793 obtained a deed from Larsh, who then held the whole interest of the mortgagees; and of course, if the sale, under the fieri facias, was competent to transfer the morigagor’s right of redemption, (or if he had before acquired the interest of Swan his co-purchaser,)'' he had vested in him both the legal and equitable title tot the property in contest. The possession of the land, must be inferred to have been obtained by the purchasers at the [315] sheriff’s sale, or soon after that transad ion; for, from that time, Ford is no longer found on the premises. In the year 1801, Samvel Hughes sold the property to William Woods, one of the defendants, who entered on the same, and lived there when the bill was filed. Woods made the improvements, for which, by the decree of the Chancellor, he was to be paid, before he could be divested of his interest. The mortgagor is considered the substantial owner of the property mortgaged; the debt due, is all the mortgagee, or those claiming under him, can demand; and, altho’ the legal estate is in the mortgagee, it is merely to secure the payment of the debt, and that effected, the mortgagor must be restored to his original condition, the unfettered owner. There is no necessity to detail the extent of the interest of the mortgagor after the time limited for the payment of (he debt has elapsed; it may suffice to say, that except no right of dower can arise, (and for this exception no substantial reason cambe given, and now no longer exists,) on the. mortgagor’s interest, he is capable of transferring, or vest - ing his interest, at his pwn pleasure; nor can he he deprived of this capacity so long as the right of redemption exists. The property mortgaged is substantially his—liable to the incumbrance of the debt; subject to that responsibility he can sell it to meet any other claims, or demands, to whom he pleases; and without his permission, and against his will, it may be withdrawn from him in the discharge of his debts, by a decree and sale, under the authority of a court of equity; and since the year 1810, it is expressly made responsible at law for his debts, as well as any other equitable interest a debtor may be entitled to. But, was it susceptible of being taken under the. attachment in the year 1789, and could it be disposed of, under the fieri facias? If it be conceded, that in England the right of redemption cannot be taken in execution and sold by a fen fa~ das; that is, the equity of redemption in chattels real, and that, before the year 1810, in this state, a fieri facias, on mere common law judgments, would not reach such property; yet, it will not follow, that it may not be approached, or made liable to an attachment. There are no words or expressions in the attachment law of 1715, ck. 40, confining its operation to such property as could be affected by [316] facias, on ordinary or eomnvn law judgments. Its language is, to award an attachment “against the goods, chattels and credits.” Bv what process at law could the. “credits” of a judgment debtor be affected? The writ of fieri facias could not meet them; ana, if they could be, made responsible, the aid of a court of equity must be solicited; and when the act caused one interest to be affected at law, to the discharge of a judgment at law, it is not presumed that any reason exists for excluding any other property belonging to the debtor from the same liability. The language of the act of 1715, ch. 40, and that of. the act of 1795, ch. 56, the supplement to the first, connected with the exposition given to the first act, in consequence of the statute of 5 Geo. II, (which passed in the year 1732,) are the same. The first makes answerable to the attachment, “goods, chattels and credits;” the last, “lands, tenements, goods, chattels and credits;” and, as the supplement to the first attachment law passed long after the statute of 5 George II, that statute could not affect its construction; and therefore, as lands and tenements, which by the act of 1715, after the statute of 5 George II, were, by construction, made liable to attachments, in order to make the supplement co-extensive with the original, they are expressly'inserted. As then the two laws on the subject of attachments are the same; that is, so far as extends to the species of property subject to their operation, the construction given to the one must apply to the other. It appears in itself but just, that the interest which a mortgagor has in property mortgaged by him should be liable, as well at law as in equity, for his debts, and there appears no force in the objection, that it is not at law subject to a fieri facias, because it is not tangible; for the rig/uf itself, whether legal or equitable, is not tangible, but the land is; and by the sale, the interest of. the party either legal or equitable, may well pass; if a legal interest, and the party in possession will not' give it lip, the purchaser is driven to his ejectment; and if only equitable, to get possession he 'must resort to a court of equity, where, if the sale under the fieri facias passed the right, he would, not only obtain the possession, but the legal estate also. And as it appears by the judgment of the. court of appeals in the case of Campbell vs. Morris, 3 Harr. & M'Hen, [317] 535, that tbe equity of redemption may be sold under an attachment issued in virtue of the supplementary act, and as the original and supplement are the same, as to the pro- perty to be affected, and as the court are not in the slightest degree disposed to question the propriety of the decision made in the case mentioned, they are drawn to the. conclusion, that whatever interest Ford had to the land, passed from him by the attachment, condemnation and sale; and of course, when his representatives filed the present bill, they had not the redeeming power vested in them. As then the complainants had no right to redeem, there is no necessity to express an opinion on that part of the case respecting improvements. The decree, therefore, dis~ missing the bill, is affirmed. degree affirmed.