36 Ky. 402 | Ky. Ct. App. | 1838
delivered the Opinion of the Court.
On the 11th of April, 1831, Daniel Mcllvoy.executed a deed of trust, including various articles of property, for securing to Crow and Jarvis a debt of eight hundred and eighty dollars, and to several other creditors other debts, The deed embraced (inter alia) four slaves previously mortgaged (October 5 th, 1830,) by Daniel Mcllvoy, to one Walsh, to indemnify him for being his surety for a debt to D. Irvine, and for another debt to Dennis Mc-JJyoy.
Walsh having afterwards, in 1832, bought Daniel Mc-]QVOy’s equitable interest in those slaves, at sales under J ^ , executions which had been issued against his estate, upon judgments obtained by other creditors, thereupon sold to one Tinsley the equity thus acquired, and also, in consideration of an agreement by the latter, to indemni- ° “ , , fy him as Mcllvoy’s surety, assigned to him the benefit ^is mortgage-
Crow and Jarvis having afterwards, in 1833, filed a in chancery for enforcing the deed of trust of 1831, for the benefit of themselves and the other beneficial
And the Circuit Judge, seeming to be of the same opinion, accordingly dismissed the bill, on the final, hearing of the cause.
The principal question now to be considered, is whether, according to the foregoing admitted facts, the plaintiffs in error have- any available interest in those slaves. And this question cannot be essentially affected by the fact that the deed of trust includes property not embraced by the prior mortgage; because it seems to have been admitted that all or very nearly all of the property, excepting those slaves, had been either consumed by Mcllvoy, or subjected to the payment of debts due to some of his other creditors-
Tinsley’s condition- cannot be better than that of-Walsh, whom he claims to have succeeded, and in whose place he asks to be substituted. Then, what was the condition of Walsh when he transferred all his interest to Tinsley? It was clearly, as we think, that of a pri- or incumbrancer only.. As Mcllvoy’s equitable interest in the slaves was sold under execution after he had executed the deed of trust for the benefit of the plaintiffs and others, Walsh neither acquired, nor could have acquired, by his purchase at those sales, any other or greater right than- Mcllvoy then had.- And • Mcllvoy’s only available interest which was sold under the executions, was his right to redeem the slaves from all existing incumbrances. It was this equitable right, and not merely his equity of "redemption under Walsh’s mortgage only, which was sold. And, as to that equity, therefore, Walsh, when he bought it, occupied the place of Mcllvoy, and none other or better. No other interest was sold under execution. Of course, the right thus bought by Walsh,
It has even been decided, and often, that a decree of foreclosure upon a bill filed upon a prior mortgage, will not extinguish or affect the right of redemption by a subsequent mortgagee who was not a party to the suit, and whose mortgage was subsisting at the date of the decree upon the elder mortgage; and that, therefore, in such a case, all subsequent incumbrancers are necessary parties. See Haines vs. Beach, 3 Johnson's Chy. Rep., 459, and the cases therein cited.
It has also been decided, that a prior mortgagee, who buys the equity of redemption, under a sale upon a judgment in his favor for another debt, operating as a
We are clearly of the opinion, therefore, that if, as the assignee of the mortgage of 1830, Tinsley has any available right, the slaves may, nevertheless, be subjected to the satisfaction of the trust sought to be enforced by the bill in this case, upon payment of whatever may be justly due under the prior mortgage; and that his right to the equity of redemption must be postponed to the prior right claimed under the deed of trust.
And consequently, the Circuit Judge, in our opinion, erred in dismissing the bill.
But, on the return of the case to the Court below, it would be proper to make Walsh and Dennis Mcllvoy or their representatives parties; because, as Walsh, not only is the first mortgagee,'but may still be liable to some extent as Daniel Mcllvoy’s security, he may be affected by the final decree which may be rendered, and is therefore a necessary party; and because, as Dennis Mcllvoy might have a right to be substituted in the place of the first mortgagee, for the purpose of- making his debt, if it be still due and unpaid, and as, moreover, the existence of that debt is a matter to be litigated in this case, he (Dennis) would be a proper party.
Wherefore, the decree of the Circuit Court is reversed, and the cause remanded.