45 Miss. 338 | Miss. | 1871
On the 7th day of October, 1869, Margaret A. Buckley and Nannie M. Buckley, a minor under the age of twenty-one years, by her next friend, Margaret A. Buckley, filed
That Henry Lekirmondie and William M. Leach, partners in business in the town of Brookhaven, in the said county of Lawrence, on the 17th day of Janury, 1859, mortgaged lot 5, in square 34, in said town of Brookhaven, of which they were owners, to one John M. Back, to secure the payment of a debt of $400.
That on the 27th day of April, 1860, the said Lekirmondie executed a deed of trust on both the said lot 5 and lot 6, in square 34, in the said town of Brookhaven, to Ivory F. Woodman and Adnon H. Bement, to secure to them the payment of a debt of $3,815.
That on the 9th day of March, 1861, the said B. C. Buckley sued out an attachment against the property of said I. F. Woodman, on a debt alleged to be due by said Woodman, which said attachment was levied on said lots as the property of said Woodman, who was alleged to be a nonresident of this state; that a judgment in the attachment suit was obtained in the circuit court of said county, under which said lots were sold, and bought by the said B. C. Buckley.
That John Daley claimed to be the owner of both the mortgage to Back and the deed of trust to Woodman and Bement, and that he foreclosed the equities of redemption of the mortgage and deed of trust, and became the pur
And the bill concludes with a prayer for a decree that the Back mortgage be assigned to the.complainants and Bement, and then for a partition of the property, or of the proceeds of the sale thereof, if necessary to be sold, between them.
The defendant, John Daley, appeared and filed a demurrer to the bill of complaint for the want of equity upon its face. The demurrer was sustained by the court and the bill dismissed. And from this decree, the complaints prosecute this writ of error, and assign for error, the action of the court in sustaining the demurrer and in dismissing the bill.
The only question presented by this record for our consideration is, had Woodman such an interest as mortgagee, in the lots mortgaged, and was subject to attachment and sale at the suit of B. C. Buckley.
By the adoption of principles long established in chancery, it has become well settled in courts of common law, that the mortgagee, until foreclosure, has.only a chattel interest; that a mortgage is but a charge upon the land, and that whatever would give the money will' carry the estate in the land along with it to every purpose. The estate in the land is the same thing as the money due upon it. It will be liable to debts ; it will go to executors ; the assignment of the debt will draw the land after it. From these properties of the mortgagee’s estate, it appears in the strongest manner, that it is not in the land, but in the security only. The debt is considered as the principal, and the mortgage as an incident only. It has been said and repeated, that it was an affront to common sense to say that a mortgagee in possession was the real owner ; that the mortgagee, notwithstanding the form, has but a chattel, and the mortgage only a security. Until foreclosure, whether the mortgagee has possession or not, the estate mortgaged is a pledge only. The relation of debtor and creditor exists, and the equity of redemption is unimpaired. Although the mortgágee has
The land mortgaged is only a security for the debt, which may be, and often is, assignable in its nature, and, if it be assigned, the mortgagor may pay it to the assignee and thus discharge the mortgage, notwithstanding the creditors of the mortgagee may have the land in execution. These difficulties can be avoided only by holding that the interest of the mortgagee, before foreclosure, is not the subject of sale on execution at law, notwithstanding the debt is due, and the estate has become absolute at law. Jackson v. Willard, 4 Johns. 41; 4 Kent. 161; and 1 Hilliard on Mort. 277 and 278.
If this view of the law be correct, it follows that Buckley acquired no title to, or interest in, the lots purchased by him under his judgment in the attachment against Woodman. WoofLman had no interest in these lots, except as a security for his debt. The debt is the principal, and the land is only an incident. The sale under the judgment upon the attach-' ment of Woodman’s interest in the lots, did not carry the debt with it; for, to hold this, would be to assume that the transfer of the incident would operate to transfer the principal, a manifest absurdity. McGaw v. Marshall, 7 Humph. 121, 127.
We think the court below did not err in sustaining the demurrer and dismissing the bill.
The decree is, therefore, affirmed.
