31 Ky. 23 | Ky. Ct. App. | 1833
delivered the Opinion of the Court.
McDade mortgaged to Martin two lots of ground, to indemnify him as his surety in a note to the Bank of the Commonwealth of Kentucky, and also in a note for a smaller amount to a third person.
Judgment having been obtained on the latter, against McDade and Martin, an execution which issued thereon, was levied on the two lots, and the interest of both Me-Dade and Martin therein sold by the sheriff to Cooper, at a price much beyond the amount due on the execution.
By an arrangement between McDade, Cooper and Gentry, previous to the sale, it was agreed that Cooper should become the purchaser of the two lots, at the sheriff’s sale, that Cooper and Gentry should release McDade from debts which he severally owed them, and which with the amount due on the execution, was to be in fulD
Cooper then filed his hill with injunction against the habere facias, denying any notice of the pendency of Martin’s suit; praying to be quieted in his possession; that Martin might be made to release his title to him, and for such other relief as he might be entitled to.
Martin, by his answer in the nature of a cross-bill, resisted Cooper’s equity;set up and relied upon the decree of foreclosure and sale under his mortgage, in har thereof ; but in case the court should deem Cooper entitled to relief, then praying a reforecloslire and sale, and claiming in that event, a priority, not only in his own favor for one-third of the bank debt paid by him, but also in favor of Churchill and Beeler, his co-sureties therein, for the other two-thirds paid by them, and to that end brought them before the Court.
They answered, claiming the lien and priority asserted for them by Martin.
- On final hearing the court treated the whole purchase of Cooper as null and void, dissolved his injunction, and dismissed his bill.
As the lots were sold together," and not separately, with-, out the privity or assent of Martin; as the sheriff exceeded his authority, in selling for more than the amount due on the execution, and as the interest of Martin was not vendible at all under execution, the court certainly did right in treating the sale of his interest as a mere nullity. But the mode of sale having been the result of an express agreement on the part of McDade, for the purpose of selling and transferring in that way his equi
From facts and circumstances not necessary to be detailed, we should have little hesitation in denying to Martin, the attitude claimed for him, of not having had notice of Cooper’s purchase, if he had been charged with it, or the fact had been put in issue. But as this has not been done, wc shall waive the consideration of the question, whether he is entitled to be so treated, inasmuch as the result, in our opinion, will be the same whether he had notice or not.
All the authorites agree that where a mortgagee, 'at the time of filing his bill, has notice of a junior mortgage, or other subsequent incumbrance, he is bound to make the holder thereof a party to the suit, or the proceedings therein will not affect him. But where he has no such notice, it has been deemed by some, an undue degree of hardship, to compel him to grope the world over in pursuit of secret incumbrances, under the penalty of render* ing his foreclosure liable to be opened at a distant day, to let in the right of redemption of one whose claim could not have been ascertained by reasonable search or enquiry. Coventry’s Pow. 306, n. G — 551, n. S — 989, n. C — The law, however, has been authoritatively settled, that he must incur this hardship. In the case of Haines vs. Beach, 3 John. Chy. 459, all the English cases, ancient and modern, are collated, and Chancellor Kent comes to the just conclusion, that in England the rule has been well settled, that the subsequent purchasers or incumbrancers must be parties, or the decree will not bind their rights. He conceives the necessity, for making the subsequent incumbrancers parties, or holding their rights unimpaired, to be much stronger and more indispensable to justice under the Ncw-York practice, similar to that of this state, because the mortgagor would
The hardships and inconveniences are many both ways; and in England the subject has been treated pretty much
Indeed, after a careful review of the arguments for and against, it will be found much less difficult to yield assent to the rule, if it hacl been settled either way, because it had been so settled, than from any thorough conviction of its absolute justice' and policy. See 3 Mad. Chancery, 188.
We think Cooper should have been permitted to redeem, upon paying Martin the amount paid by him on the i,.ank debt, with interest and the costs of the former suit. It is true, there is no specific prayer for such relief, but under the circumstances of the whole case, we think it should have been afforded under the general prayer.
If Gentry had been the purchaser, or sole proprietor, of the equity of redemption, he couid not be relieved from the eiiect of his laches in failing to defend Martin’s bill. Or, ii instead of a purchase of the whole equity of redemption by Cooper, in which Gentry holds an interest to the amount of his debt, there had been a new mortgage made to them to secure the amount of their respective debts, it might have been proper, in that state of case, to give Martin the election to hold the property, by paying Cooper alone, to the exclusion of Gentry. But as his iaches cannot affect the rights of Cooper, and as Cooper can only have full justice by permitting him to redeem, it is no valid objection' to his being allowed so to do, that Gentry may thereby derive anevent-tual benefit, from which he otherwise would have been debarred — the benefit to Gentry being no matter of prejudice to Martin.
There is no just pretext for subjecting the property to the execution debt paid by Cooper, pari passu with that of Martin. The sale under the execution was an extin-
Nor is there any better reason for the lien asserted in behalf of Beeler and Churchill, for the amount of the bank debt paid by them-. The mortgage was exclusively for the benefit and indemnity of Martin, and in. no way t° secure them-. A, return of me-money paid by him, with interest, is full indemnity to him, and an entire satisfaction of the terms of the mortgage.
The decree must be reversed, with costs, and the cause remanded with directions to ascertain the amount paid-by Martin on the bank debt, and its value in specie at the time of payment; upon repayment of which, with interest, together with the costs of his suit against Me-Dade, by a named day, Cooper should be permitted to redeem the property, and have his title and possession quieted otherwise his bill to-be dismissed.