Bailey, Davis & Co. v. Timberlake
74 Ala. 221
Ala.
1883
Check Treatment
BBICKELL, O. J.

— The demurrer of appellants, Bailey, Davis & Cо., to the original bill, assigns two separate and distinct causes, though stated in varying form and terms. The first is, that as they are not averred to hаve had notice of the ' erroneous description or designation of a part of the lands em*224braced in the mortgage to the appellees, as judgment creditors of the mortgagor, they are protected by the statute of registration against а reformation or correction of the description, so as to apply the mortgage to the lands really intended to bе conveyed. The second is,'' that, if not entitled to protection as judgment creditors, they are as purchasers under the execution sale and the conveyance made to them by the sheriff.

1. The statutes of registration relate only to conveyanсes of the legal estate in lands, — not to equitable interests, often incapable of registration, and to which it is not practiсable to apply the policy pervading the statutes. Such equities ‍‌‌​‌‌​‌‌​​​​​​‌‌‌‌‌​‌​‌‌​‌​‌​​‌‌​​‌‌​‌​‌​‌​‌‌‌‌‌‍or interests are hot subject to the lien of judgments or executions at law, and there can be no reason for declaring them unavailing as to the judgment creditor, who has not, and can not acquire, a lien upon them for the satisfaction of his judgment — Falkner v. Leith, 12 Ala. 165; Fash v. Ravisies, 32 Ala. 451; Donald v. Hewitt, 33 Ala. 534; 2 Lead. Cas. Eq., Part I, 226. Against outstanding and prior conveyances of the legal estate, not recorded as the statutes require, and of which he is without notice, protection is afforded him, because, by the issue and delivery of execution to the sheriff, a lien is acquired, which it is the policy of the statute to preserve, entitling it to precedence as. a reward of diligence, and to discourage dormant conveyances. The lien is, however, subordinate to all the equities, not tainted with fraud, binding on the legal estate, which could have been maintained and enforced against the judgmеnt debtor. — 2 Lead. Cas. Eq., Part I, 89.. There is no more frequent application of this principle, than to suits in equity for the reformation of dеfective conveyances of lands, or of other instruments of which registration is necessary. The court intervenes, and enforсes the equity against all others than a bona fide purchaser for a valuable consideration without notice. In this relation a judgment crеditor does not stand; he is not a purchaser; has not a jus im, re, nor a jus ad rem. All he has acquired, or can acquire, is a mere general, inchoаte lien upon the lands or estate of his debtor subject to execution ; and a court of equity will not suffer the lien to be so ‍‌‌​‌‌​‌‌​​​​​​‌‌‌‌‌​‌​‌‌​‌​‌​​‌‌​​‌‌​‌​‌​‌​‌‌‌‌‌‍employed, that property which, in equity and good conscience, belongs to another than the debtor, shall be taken and aрplied to the satisfaction of the judgment. 1 Story’s Equity, § 165; Lb. § 1502; Hale v. Stone, 17 Ala. 557; Whitehead v. Brown, 18 Ala. 652; Larkins v. Biddle, 21 Ala. 252; Early v. Owens, 68 Ala. 171.

2. While the lien of a judgment, or, under our statutes, the lien of an execution, is limited and confined to the estate of the debtor, not cutting off equities capable of enforcement against him, the rule does not aрply to a purchaser for valuable consideration, without notice, at a sale under the execution and *225judgment. The, right of a bona fide purchasеr to protection against latent equities, of which he has no notice, is generally regarded as the same, whether the purchase is by contract with the holder of the legal estate, or at a forced sale, tire act of the law. — Ohio Life Ins. & Tr. Co. v. Ledyard, 8 Ala. 866; Fash v. Ravisies, 32 Ala. 451; 2 Lead. Cas. Eq., Pt. I, 93 et seq. There is some cоnflict of authority, whether the judgment creditor, if he becomes the purchaser, and pays the purchase-, ‍‌‌​‌‌​‌‌​​​​​​‌‌‌‌‌​‌​‌‌​‌​‌​​‌‌​​‌‌​‌​‌​‌​‌‌‌‌‌‍money by the mere satisfaction of his judgment, in whole or in part, is entitled to stand in. the relation of a bona fide purchaser. — 2 Lead. Cas. Eq., Pt. I, 94; Freeman on Executions, § 336; Ohio Life Ins. & Tr. Cо. v. Ledyard, supra; Fash v. Ravisies, supra; Saffold v. Wade, 51 Ala. 214. TJpon that question it is not now necessary to enter into a discussion, or express an opinion; for it is apparent that the sale by the sheriff was a ‍‌‌​‌‌​‌‌​​​​​​‌‌‌‌‌​‌​‌‌​‌​‌​​‌‌​​‌‌​‌​‌​‌​‌‌‌‌‌‍nullity, — the judgment debtor, at the time of the levy and sale, not having an estafe or interest in the lands which was subject to the execution.

3. The deed of trust to Bobiuson, for the security of the debt to Townsend, wаs older than the mortgage to the appellees, and older than the judgment under which the sheriff made the sale. Before the rеndition of the judgment, Bobinson, the trustee, in execution of the power with which the deed clothed him, made sale of-the lands; Marcellus Townsend, from whom Bailey, Davis & Co. redeemed, becoming the purchaser. The sale as effectually cut off and barred the equity of redemption,— the only estate or interest in the lands residing in the judgment debtor, — as a decree of strict foreclosure would hаve done. The legal and equitable estates were by the sale united in the purchaser, and all that remained to the judgment debtоr was the-statutory right or privilege of redemption, which is not property, but a mere matter of jurisdiction, and is not the subject of sale under execution at law. — Childress v. Monette, 54 Ala. 317. The right of the judgment debtor was the mere privilege of re-purchasing the lands upon the terms prescribed in thе statute; a right which does not arise until after a sale under the decree of a court ‍‌‌​‌‌​‌‌​​​​​​‌‌‌‌‌​‌​‌‌​‌​‌​​‌‌​​‌‌​‌​‌​‌​‌‌‌‌‌‍of chancery, or under execution at law, or in the execution of a power in a mortgage or deed of trust; and it is forfeited, if there is not an exercise of it in thе precise mode prescribed by the statute. — Spoor v. Phillips, 27 Ala. 193; Paulling v. Meade, 23 Ala. 505; Sanford v. Ochtalomi, Ib. 609. So far from the statutes contemplating that the right or privilege shall be subject to levy and sale under execution, they confer upon judgment creditors a distinct, independent right of redemption, which can not be impаired or forfeited by acts of the debtor, which would operate a destruction or forfeiture of his rights. — Trimble v. Williamson, 49 Ala. 525. The ex-*226ecution sale passed no interest in the lands, and by it the purchaser acquired no right which any court, either of law or equity, will notice and protect.

As junior mоrtgagees, having acquired, before the sale by the trustee, the equity of redemption of the mortgagor, the appelles wеre entitled to redeem from the purchaser at the sale made by the trustee, Robinson. A mortgagee has the statutory right of redеmption, whether a sale of the lands subject to the mortgage has been made under execution at law, or under a prior mоrtgage or deed of trust. — Freeman on Executions, § 317. They have an equal right to redeem from a junior judgment creditor who has redeеmed from a purchaser, under the terms prescribed in the statute.

The demurrers were not well taken, and the decree overruling them must be affirmed.