8 How. Pr. 159 | N.Y. Sup. Ct. | 1853
The view that. I take of the principal question, renders it unnecessary for me to consider what I con'ceive to be the highly objectionable, if not irregular practice, of allowing two defendants to bring on the case for argument, while there are thirty others, who, by the same rule, may make thirty more arguments of a matter which is ctimmonto all, and decisive of all their rights. The old rule requiring an issue of law or fact to be joined in regard to every defendant, except those who are defaulted, before the cause could be brought to argument, has never, Jo my knowledge,, been abrogated; and as long us legal proceedings'retain aily.^degree of consistency and symmetry, it never can be. disregarded^'
I do pot, however, 'icon cur with the learned counsel, who, on the part ofjhe plaintiff, contended that a defendant can not take advantage of an incurable defect in the complaint by a motion of this kind. The .defect in this complaint, if it is defective at all, is one that can not be cured, and that, therefore, is not waived by any pleading, but may be raised whenever the parties are before the court, either at special term by motion, or on the trial by motion in arrest after verdict. The court may regard it even on general demurrer.
But I will briefly consider the very grave question presented by the defendant’s objection to the plaintiff’s right to recover. It is founded upon the 8th section of the “ act to establish a uniform system of bankruptcy throughout the United States,” passed in 1841, which provides that “ no suit at law or in equity, shall in any case be maintainable by or against such assignee, or by or against any person claiming an adverse interest, touching the property and rights of property aforesaid, in any court whatever, unless the same shall be brought within two years after the declaration and decree of bankruptcy, or after the cause of suit shall first have accrued.”
At the time McKibben was declared a bankrupt, he owned what is termed the equity of redemption. In other words, he was the owner of the fee in the land, subject to the mortgage. The modern doctrine is well established, that the mortgage is merely a lien upon, and not 'a title in or to the land. The mortgagee holds it as a security for the debt, while the -mortgagor continues seized pf the estate with all the rights of a freeholder; and this estate may pass, by devise, descent or alienation (4 Kent Com. 160; 3 Denio, 232). The fee, therefore, by operation of the bankrupt act was transferred to the assignee, subject to the mortgage. While it remained in him the mortgage foreclosed the rights of the mortgagors; but, as the assignee was not made a party to the foreclosure suit, his rights remained unimpaired, and his sale and conveyance to the in me latter the title precisely as it came from McKibben. And as McKibben had the undoubted right to redem from the mortgagee by paying the amount of the latter the Plaintiff of course, has that privilege now.
But it is contended that the right has been lost by the lapse of the two years, under the section before cited. It is obvious, however, that the section was not intended to cover a case of this character. It must be confined to those cases where there is some dispute as to the rights of the assignee, which renders a suit necessary, before he can obtain the full possession or benefits of the assigned property. Such was the case of Comyn vs. McCord (11 Ala. 932), where the assignee brought an action of detinue for two receipts; and the case of Harris vs. Collins (13 Ala. 388), where the action was brought to recover rent due on a lease. In both of those cases, the object of the suit was to reduce the assets into possession, in order to make them available for the purpose of distribution among the creditors. But in this case, no suit was necessary. The assignee held the land peaceably. No one disputed his title nor claimed any adverse right. It was not his
The plaintiff is therefore entitled to judgment, with costs.