Hyde v. Warren

Simrall, J. : This bill was exhibited to correct a mistake in the description of the lands mentioned' in the pleadings, and the deeds exhibited therewith. It is not controverted in this court, that the deed from A. J. Hyde and wife to War: ren, and the mortgage from Warren to Patrick, Irwin & Co., 28 and the deed from the latter to James Patrick, were intended to convey the lands described in the deed, from J. M. Dealing and wife to A. Warren and Mrs. P. M. Hyde, wife of A. J. Hyde. It is conceded that the misdescription and mistake exists. The complainants would, therefore, be entitled to the relief sought by their bill, unless other equities are disclosed which should defeat it. But it is said that the sale made under the mortgage to Patrick is void, because, although the mortgage confers a power of sale on the mortgagee, the power cannot be executed in pais; but resort must be had to a court of chancery. That view of the subject seems to have been adopted by the chancellor in Ford v. Russell, Freeman’s Ch. 49. The cases referred to by the learned chancellor of Clay v. Willis, 1 Barn. & Cress. 364; Wright v. Rose, 2 Sim. & Stu. 323; and 1 Rand. (Va.) 306, do not support his position. The English cases involved the question, “to whom did the surplus go after a sale?” and the further question whether “the mortgagor had the equity of redemption.” If the sale was made by the morgagee in the life-time of the mortgagor, then the surplus would be assets, to be disposed of by his legal representatives; if after his death, then the heir, upon whom the equity of redemption had descended, would be entitled. The case in 1 Rand, concedes that a sale made by the mortgagee would pass the legal title, but would not bar the equity of redemption. Neither of the cases go the length of holding that a sale made by the mortgagee is void. The power of sale does not change the redeemable character of the instrument, which is the specific characteristic of a mortgage. This right remains so long as the power has not been executed. Eaton v. Whiting, 3 Pick, 490, and several other cases hold that unfairness is fraud. The mortgagee, either directly or through another person, may be a purchaser. Richards v. Holmes, 18 How. (U. S.) 143; Howard v. Davis, 6 Tex. 174; Bergen v. Bennett, 1 Caine’s Cas.; Orlen v. Manhattan Co., 10 Johns. 185; Hilliard on Real Prop.; Erskin v. De Baum, 3 Tex. 3. The grant of the 29 power is irrevocable ; it does not cease on the death of the mortgagee. Where the power was to A. and his administrator and assigns, it was held, after the death of A., that his administrator conld well execute it. Collins v. Hopkins, 7 Clarke (Iowa), 463. In the cases reported in 1 Caine, and 10 Johns., the distinction is taken between a purchase made by a trustee, and the cestui que trust; the former sustains a confidential relation to all the parties to the instrument; the latter is interested in making the property pay off the debt, and in enhancing the price at the sale. Certainly the better practice is to resort to chancery for a foreclosure and sale; very slight circumstances of unfairness or imposition where the mortgagee purchases would be sufficient to avoid the sale. We give no opinion on the point, whether, after a purchase by the mortgagee under a power of sale, the relation between himself and the mortgagor is so changed, as that the equity of redemption is cut off, as would be the case were a stranger a purchaser, according to the better reason, and the. weight of authority. Nor is it necessary to announce as a positive opinion, whether the mortgagee may be a purchaser or not. Treating the deed to the purchaser under the mortgage as void or voidable for any sufficient reason, Mrs. Hyde, in whose behalf the objection is made, has no interest in the question, and would.not be affected by a decision one way or the other. The moment it is conceded that there is a mistake in the deed from her and her husband to Warren, and a case is made which would warrant a reformation of the misdescription of the premises, then it is established that the “ right” to the lands have departed from her, and vested in Warren, and it is a matter of no concern to her, whether the title passed by the sale to Patrick, or not, under the mortgage which Warren made to Patrick, Irwin & Co. If Warren does not question that conveyance, or seek to avoid it, she has no interest to do so, for, if that sale were invalid, the mortgage would be restored, or the title would still be in Warren. She, therefore, can set up nothing against the deed to Patrick 30 which, she could not oppose to her conveyance to Warren. But it is said that her conveyance to Warren is invalid, because no consideration inured to the wife. The twenty-third section of the statute (Rev. Code, 335), respecting ‘‘the separate property of married women,” imposes no restriction upon the “ sale, conveyance or mortgage ” of the separate property of the wife, except that the deed shall be executed, and acknowledged, with the prescribed formalities, and except also, that she shall not mortgage or incumber, for the separate debts of the husband, “beyond the amount of her income.” In cases arising under the act of 1839, the doctrine of this court was, that as that act conferred the power of conveying by deed duly acknowledged, it also embraced the lesser power of incumbering by mortgage ; and that an incumbrance, created for the debt of the husband, bound the corpus of the property. James v. Fisk, 9 Smedes & Marsh. 144; Sessions et ux. v. Bacon, 23 Miss. 272; Russ v. Wingate, 30 ib. 445; Whitworth v. Carter, 43 ib. 73. The deed relates to a pecuniary consideration. The evidence is, that the lands were originally paid for by the joint means of Warren, and her husband, A. J. Hyde ; and that, at the husband’s instance, the wife’s name was inserted in the deed. Hyde and wife conveyed to Warren, so that he might by a pledge of the lands raise means to purchase a stock of goods, for account of Mr. Hyde and himself, and that the mortgage was executed to Patrick, Irwin & Co., of Mobile, for moneys and credits advanced for that object. Warren exhibited the deed of Hyde and wife to himself, as evidence of his title, and a guide in drafting the mortgage. They had no knowledge of the understanding or arrangements between Hyde and wife and Warren, and are not affected by them. Hyde and wife put it in the power of Warren to appear as owner, and to deal with the property as such. Decree affirmed.