1 Ala. 708 | Ala. | 1840
Whenever by any means, any interest of a party to the suit, in the matter in litigation, becomes vested in another, the proceedings are rendered defective, in proportion as that interest affects the suit; so that although the parties to the suit may remain as before, yet the end of the suit cannot be obtained. And if such a change of interest is occasioned by, or is the consequence of the death of a party whose interest is not determined by his death, or by the marriage of a female plaintiff, the proceedings become likewise abated or discontinued, either in part or in the whole. For as far as the interest of a party dying, extends, there is no longer any person before the court by whom, or against whom the suit may be prosecuted. (Mitford’s Eq. Pl. 56 ’7 and cases there cited.) The suit then, quoad a party
There is not the slightest pretence, that the plaintiffs were made parties to the suit of Hunt. No bill of revivor, or other similar proceeding was ever resorted to for that purpose. True the death of Daniel Duval was suggested, and a guardian ad litem appointed for his heirs, and a scire facias directed to issue to him; but it does not appear from the record in that case, which the bill of exceptions professes to set outsbi extenso, that such process was ever isssued. The guardian never having ap. peared and answered, an entry was made as follows: “ This day came the complainant by his solicitor, and John F. Everett, who was appointed guardian ad litem to the infant heirs of the said Daniel Duval, having failed to answer. It is ordered that this case be referred to Thomas White, who is hereby appointed master in chancery, to ascertain the amount due from the defendants to complainants, and he is hereby directed to report immediately.” On the next day the master made his report, which was confirmed and the decree rendered for a foreclosure and sale under which the defendant purchased a part of the property in dispute.
It was argued for the defendant, that even conceding the decree of foreclosure and sale does not divest the plaintiffs of their equity of redemption, yet they will operate as an assignment of Hunt’s mortgage; that Hunt having resorted to the court, in order to collect his debt, by a sale of the mortgaged premises, and having acquiesced in the decree and the consequent proceedings, this allowed the defendant to be substituted to all his rights, both in the debt and the mortgage; and it is not now permissible for the plaintiffs to urge the invalidity of the assignment. This argument is confessedly ingenious; yet we think it cannot be sustained. Hunt did not ask the interference of equity, merely to enable him to make an assignment of his mortgage. His power to perform that act without judicial sanction was entirely competent. A transfer of the debt intended to be secured, whether by indorsement or a mere delivery, would in equity, pass the security, and a written transfer of the debt and mortgage would vest the assignee with the legal interest in both. Such being the rights of the mortgagee, equity would not entertain jurisdiction for a purpose so entirely profitless, as the mere approval of an act, which might have been done out of court, without the authority of a decree.
A decree of foreclosure and sale certainly does not operate merely as an assignment of the debt and mortgage to the purchaser. The creditor who takes a mortgage to secure a debt by bond or otherwise, has three remedies, either of which he is at liberty to pursue; and all of which it is said, he may pursue, until his debt is satisfied. He may bring an action at law on the bond, or he may put himself in possession of the rents and profits of the land mortgaged, by means of an ejectment, or Ires
Again: It is held that a decree of foreclosure and a sale under it, operates as a payment, to the extent of the sum paid by the purchaser, deducting therefrom the costs and charges with which the fund is properly chargeable. (Newell et al. v. Wright, 3 Mass. Rep. 150: Amory v. Fairbanks et al., ibid. 562: Hedge v. Holmes; 10 Pick. Rep. 380.) The payment of the debt extinguishes it, so that there is no subsisting contract to assign; and the contract being at an end, the mortgage, which is but an incident, terminates with it.
Whether equity would afford relief to a purchaser under a void decree, by subrogating him to all the rights of the mortgagee, to the payment of whose demand the purchase money had been appropriated, and thus keep alive, as against the mortgagor and his heirs, the mortgage, as a security for his reimbursement, is a question which cannot arise in a controversy at law, and we therefore, decline its examination.
Our conclusion then, upon this branch of the case is, that by the death of Duval, Hunt’s suit abated; that his heirs were indispensable parties, in order to foreclose their equity of redemption; that they were not made parlies by bill of revivor or oth.
II. It is argued for the plaintiffs, that the proceedings in the county court, in regard to the real estate of Daniel Duval, are void, and will not aid the title of the defendant, because — 1. The orders of the court directing a sale were not made in pursuance of petitions previously filed. 2. In one case, the heirs of Duval are not designated by name. 3. In both cases, the citation is directed to issue to the individual appointed a guardian ad lilem, by order of the court, instead of the heirs. 4. Henry v. Chamberlain and Curtis Lewis, the commissioners appointed to execute the decree of the 17th May, 1827, did not make their report within sixty days, as therein directed. 5. The proceedings, for the purpose of obtaining orders of sale, do not appear to have been regularly continued up to the time when the orders were made, nor does the record show, .that the orders were made on judicial days. G The order of the 10th July, 1S28, setting aside the sale of (he defendant, under the order or decree of the 7th May, 1827, was unauthorized, and the resale, of consequence, void: and 7. The order, directing a re-sale, was void, inasmuch as it required the commissioners to sell an equity o-f redemption.
It may be proper to premise that the proceedings in the county court, originated under an act of December 1822, authorizing an administrator or executor to “ file a petition in the county court of the county in which letters of administration, or letters testamentary, have been granted, .setting forth that the personal estate of his intestate or testator (as the case may be,) is not sufficient for the payment of the just debts of such intestate or testator, or, that the real estate of such testator or intestate, cannot be equally, fairly and beneficial^, divided among the heirs or devisees of such intestate or testator, without a sale of the real estate,
I. In lespect to the first objection to the proceedings of the county court, it cannot avail the defendant. It is true, the statute requires that the executor or administrator, shall file a petition in open court, as the initiatory step towards obtaining an order or decree for the sale of the real estate of their testator o-r intestate; yet if the court goes on to render its decree, it cannot be intended, from the absence of such a paper merely, that it was never filed. The intendment most rational, would be, that it was lost after the rendition of the decree. (Wheeler v. Bullard, 6 Por. Rep. 360.)
But here, it cannot be necessary ,to intend any thing which the record does not fully establish. By that, we are informed that the administratrix filed her petition, in which the lands sought to be sold were particularly described.
But it is argued for plaintiffs, that the proceedings of the county court, commenced in April, 1827, are void as against them, because not being made parlies eo nomine, they cannot prosecute a writ of error in order to their revision. Perhaps the statute, which provides for the issuance of writs of error by inferior courts, would not embrace the case of the plaintiffs; yet we apprehend that the powers oí this court, in virtue of its general superintendency of “ inferior jurisdictions,” would be adequate to the emergency. (Bett’s administrator v. Taylor, 6 Porter’s Rep. 333; Seawell v. Bate’s aministrafor, 2 Stew’t. Rep. 462; 3 ibid. 199.)
In respect to the objection, that the orders or decrees for the sale of the real estate do not appear to have been made at a regular or adjourned term of the county court, it may be remarked that the reverse does not appear, and we must intend that they were made in conformity to the statute. Such an intendment would be indulged, even if a writ of error were prosecuted for the purpese of revising the orders or decrees.
The order then, by which the sale to the defendant was set aside, being void, it will follow that the decree for a re-sale was unauthorized by law. That the county court cannot decree the sale of the real estate of a deceased person, on which mortgages exist, and provide for their payment from the proceeds, will not perhaps, be controverted. — Such a power, regularly pertains to a court of equity. But whether a sale of the mortgagor’s interest, under a decree of the county court (as seems to have been made,) will not confer upon the purchaser the right to redeem, is a different question, which the view already taken makes it unnecessary to decide.
III. We have already’ seen that an assignment of a debt, secured by a mortgage, will, at least in equity, transfer an interest in the mortgaged property, and that if the mortgage itself be also regularly assigned, the legal interest in both will vest in the
The mortgage does not describe the " two certain bonds or obligations,” as being made payable to the mortgagees, but merely recites that, " Daniel Duval is justly indebted to the said parties of the second part, &c.” The mortgage then is not contradicted by the production of securities payable to " Maria Machado Caro” one of the mortgagees, but the reasonable intendment is, that although one of the parties is named in the notes, yet all, in whose favor the mortgage is made, are interested in the proceeds.
If the law be, as it has been determined in the cases cited from Johnson and Cowen’s Reports, then it is clear, that the securities intended to be embraced by the mortgage, should be described with reasonable certainty, in order that they may be identified by a comparison, or else they should be shown by extrinsic proof to be the evidence of the identical debt to which the mortgage refers. That parol proof of the identity of the debt is admissible, is sustained by the most respectable authority.
In Shiveras et al. v. Caig & Mitchell, 7 Cranch’s Reports 50, the mortgage purported to secure a debt of ¿230,000 sterling, due to all the mortgagees. But it was really intended to secure different sums due, at the time to particular mortgagees; advances afterwards to be made, and liabilities to be incurred to an uncertain amount. The mortgage was upheld, because it was executed in good faith. The court remarking, that the real transaction appearing to be fair, though somewhat variant from that which is described; it would, therefore, be unjust and unprecedented to deprive the person, claiming under the deed, of his real, equitable rights, unless it were in favor of a person who has been, in fact,
In concluding that a mortgage cannot assign the right to the mortgaged property, without also assigning the debt to which it is an incident, we do not desire to' be understood as intimating, that it is incompetent for the mortgagee to relinquish, by contract, the possession to a third person, at any time, until the debt is paid. — But the defendant does not claim to occupy under such a contract — he insists upon the validity of the assignment to himself.
In the case before us, no evidence was offered to show that by M two certain bonds or obligations” as referred to in the mortgage, were intended the two promissory notes produced at the trial, but the reverse is rather inferable. The admission of the notes, without this additional proof according to the view we have taken, was erroneous.
This remedy, by entry, was allowed only in case of ouster by abatement, intrusion and disseizin; for the original entry of the wrongdoer being unlawful, a remedy was afforded by the mere entry of him who had right. And this right of entry was taken away by a descent cast.
The descents, which take away entries, are when any one, seized, by any means whatsoever, of the inheritance of a corporeal hereditament, dies, by reason whereof the same descends to his heir: in such case, however feeble the right of the ancestor might be, the entry of any other person who claims title to the freehold is taken away; and he cannot recover possession against the heir, by this summary method, but is driven to his action to gain a legal seizin of the estate. And the reason why the right of entry is tolled, is, first, because the heir comes to the estate by act of law, and not his own act; the law, therefore, protects his title, and will not suffer his possession to be divested, till the claimant has proved a better right. Secondly, because the heir may not suddenly know the true state of his title, and therefore, the law, which is ever indulgent to heirs, takes away the entry of such claimant, as neglected to enter on the ancestor, who was well able to defend his title; and leaves the claimant only the remedy of an action against the heir. Thirdly, because the rule was adapted to the military spirit of the feodal system, and tended to make the feodatory bold in war; since his children could not, by any mere entry of another, be dispossessed of the lands, whereof he died seized. And lastly, because it was agreeable to the dictates of reason, and the general principles of the common law. [3 Bla. Com. 174 to 179: 2 Bac. Ab. 304 to 312: 3 Reeve’s Eng. L. 16: 4 Ibid. 236: 2 Hilliard’s Ab. 177 and 190: Co. Lit. 266. a. 238. a. 240. b. 256. a. Adams on Ejectment 41 to 45: Taylor v. Horde, 1 Burr. Rep. 60: 12
Though the effect of a descent cast, upon the right of entry in the cases enumerated, is generally, nS we have stated it, yet there are exceptions to the rule. [See 2 Bac. Ab. 307 to 311, and the authorities above.] And it has been held, that ejectment lies after a descent cast, though there is no right of entry. [Mockbee v. Clagett, 2 Har. & McH. Rep. 1, and 3 Ohio Rep. 237.] So, also, where the entry of the party, or his ancestor, was originally lawful, and the continuance in possession only unlawful, the entry is not tolled. [Dowl & R. Rep. 41.] But it is needless to consider this doctrine further, since it is clear that even conceding the common law, in this particular, to be in full force here, it cannot be applied to the defendant as the assignee of the mortgage to the Caro’s.
Supposing the assignment to be valid, we have seen that the assignee was placed in the same situation which the mortgagee proviously occupied. Now the mortgagee had a continuing right of entry, which he might exercise at any time; or he might, at his election, permit the mortgagor to retain the possession. It is said the mortgagee is entitle to the possession, that he may prevent waste, and keep the property from being lessened in value in any way, and also to enable him to receive the rents and profits. (Soutberin et al. v. Mendrum, 5 N. Hamp. Rep. 420: Newhall v. Wright, 3 Mass. Rep. 138.) For so long as he permits the mortgagor to remain in possession, he has no right to the rents and profits. (Exparte Wilson, 2 Vesey and B. Rep. 253.) The right of entry then, in such a case, results from the contract of the parties: it is a continuing right, to be exercised or not, at the pleasure of the mortgagee; and depending upon contract, cannot be divested^by the death of the mortgagor, or other event, which does not annul the mortgage, or bar a reme'dy upon it. Other reasons might be stated, to show the inapplicability of the doctrine, in regard to a descent cost, to the case of the defendant; but those already noticed are deemect conclusive.
This argument is attempted to be sustained, by decisions of the supreme court of Massachusetts, founded on the legislation of that State, The first enactment declares, -that “ No executor or administrator, after having given notice of his appointment, as provided in the first section, shall be held to answer to the suit of a creditor of the deceased, unless it be commenced within four years from the time of his giving bond as aforesaid, excepting in the cases hereinafter excepted.” [t has been held, that this special limitation is not created for the personal convenience of the executor or administrator, but for the benefit of the persons interested in the estate he may represent ; and that although an administrator is not bound to plead the general statute, yet he is bound to plead this statute which relates directly to himself. And further, that although an acknowledgment by an executor or administrator, after the time limited by the general statute, may revive a debt against the tes
There is certainly nothing in the terms of the act cited, to show that the debt is extinguished. It merely declares, that the executor or administrator shall be held to answer to the suit of any creditor, &c., not that he shall not be bound to pay the debt. This language is not more stringent than that employed in the general statute of limitations of Massachusetts, which is as follows: “ The following actions shall be commenced whithin six years next after the cause of action shall accrue, and not after-wards,” &c. It is the acknowledged office of the courts of Massachusetts, to expound her own statutes; yet we cannot help thinking, that harmony, of decision would have been better preserved by determining that the special, like the general act, merely barred the remedy.
In some of the cases cited it is regarded as a clear principle that a promise by an executor or administrator, will remove the bar of the general, though not of the special statute. This distinction in our opinion, is not defensible. .In neither case will the promise revive the remedy. In Peck v. Botsford, 7 Down. Rep. 180, the supreme court of Connecticut in considering the effect of such a promise say, “ our laws regard an executor as an agent or trustee; without any beneficial interest given to him by the will. The personal property is indeed vested in him to pay the debts and legacies of the deceased. The residue goes to the heir or devisee. His duty is to settle the estate according to law; and not to subject it to debts by his admission.” The’
In Gookin v. Sanborn et al. 3 N. Hamp. Rep. 491, it was held that a claim against the estate of a deceased person is extinguished, if not exhibited to the executor or administrator within the time prescribed by law. But the terms of the statute of New Hampshire are so explicit that the court could have attained no other conclusion. So far a9 need be noticed, they are as follows: “ That in case any creditor shall neglect to exhibit his or her demand against said estate, to the executor or administrator within the term of two years next after proving the will, or taking administration &c., such demand shall be extinguished, and the creditor totally barred from recovering the same.”
The remaining provision of the Massachusetts statute, on which one of the authorities cited rests, is in these word: “ Afthe settlement of any estate by an executor or administrator, and after the expiration of the time limited for the commencement of actions against him, by the creditors of the deceased, the heirs, next of kin, devisees and legatees of the deceased, shall be liable in the manner provided in the following sections, for all debts which could not have been sued for, against the executor or administrator, and for which provision shall not have been made, &c.” Again: “any such creditor whose right of action shall first accrue, after the expiration of the said time of limitation, and whose claim shall not have been presented to the judge of probate, or, if presented, shall not have been allowed, &c.? may recover the same against the heirs and next of kin, of the deceased, and the devisees and legatees under his will, each one of whom shall be liable to the creditor, to an amount not exceeding the value, whether of real or personal estate, that he shall have received from the deceased,” &c. ‘^And provided further, that no such suit shall be maintained, unless it be commenced within one year next after the time when the right of action shall -first accrue.” [Rev’d. Statute of Mass. ed. 1836, p. 448.) In
But we have a statute of our own, in reference to which this point must be considered: it is in these words: “All claims against the estates of deceased persons, shall be presented to the executor or administrator, within eighteen months after letters testamentary, or letters of administration shall have been granted to said executor or administrator, and not after; and all claims not presented within the time aforesaid, shall be foreyer barred
We have already seen that a mortgagee of land has three several remedies. 1. An action upon the bond or other evidence oí indebtedness, intended to be secured. 2. An action to recover the possession; and 3, A suit in equity, with the view to a foreclosure and sale. And he may prosecute all or either of these remedies at the same time, until he obtains satisfaction. Such being the law, we cannot conceive how the loss of one remedy should bar the others. (Lamb v, Clark, 5 Pick. Rep. 193: Miller et al. v. Miller, 7 Pick. Rep. 133: Ferriss v. Ferriss, 1 Root Rep. 465: Ashley v. Hill, 6 Conn. Rep. 246.) If the duty still remains, the plaintiff may adopt any appropriate, means for its enforcement.
A mortgage, as we have seen, passes to the mortgagee, as between himself and the mortgagor the estate in the land; and therefore gives something more than a mere security for a debt. It confers a specific lien upon property, of which the mortgagee, unless restrained by contract, may at any time take possession and retain it, until the debt is paid: and consequently the decisions, in regard to the effect of liens, after the statute has run against the debt, are strictly applicable. In Spears v. Hartley, 3 Esp. Rep. 81, Lord Eldon declared it as his opinion, that though the statute of limitations has run against a demand, if the creditor obtains the possession of goods, on which he has a lien for a general balance, he may hold for that demand, by virtue of the lien. And in Higgins v. Scott, 2 Barnw. & Adol. Rep. 431: Hyatt, an attorney, elaimed a lien upon a judgment, though his
The estate of the mortgagor, (in order to make the security available,) having vested in the mortgagee, so long as the debt continues, he should be permitted to reduce the mortgaged property into posession at any time, until the statute has run against an action of ejectment. Or he might waive that remedy and proceed in equity for a foreclosure and sale. This conclusion seems necessarily to follow from the consideration that, the statute operates to defeat the remedy, without discharging the duty.
It may seem, quite a refinement to speak of a right as existing, which can never be revived or enforced, yet a long continued course of decision, has so often recognized it, in the construction of the statute of limitations, that it may be considered a principle too firmly fixed to be changed, save only by legislation.
The mortgagee then, having a specific lien for the payment of his debt, there can be no reason why he should advise the administrator of his debt, in order to have the ben'efit of the lien. The grant of letters of administration does not confer upon the grantee the right to administer the realty. True, he may ask and upon proper proof obtain an order from the court appointing him, for the sale of the land of the deceased, for payment of debts, &c. but he cannot receive the proceeds until he executes an additional bond. This being the case, surely there is no necessity for presenting to the administrator the claim of the mortgagee; unless the security is deemed insufficient, and the estate of the deceased is looked to for the deficiency — in the lat
This view, is deemed sufficient, to show that the validity of the mortgage assigned by the Caro's to the defendant is not impaired by the failure to present the notes intended tó be secured to the administrator of Duval, within the time limited by statute. [See Belknap v. Gleason, 6 Conn. Rep. 2d series 160: Lingan v. Henderson, 1 Blands. Rep. 282: v. 2 Hals. Rep.: Hughes et al. v. Edwards and wife, 9 Wheaton's Rep. 489: Elmendorf v. Taylor, 10 Wheaton’s Rep. 152.
IV. In respect to the deed from Maria Machado Caro and Catharine Duval to the defendant, its inadmissibility was not shown to the circuit court, so as to have authorized its rejection. The plaintiffs objection to it, was founded upon the assertion, that the grantors had no tranferable right to the property embraced by their deed. No evidence was adduced to the court to sustain the objection, and the court could not regard it as well founded, merely upon the suggestion of counsel. The defendant might have given in evidence a conveyance from Mrs. Caro and Mrs. Duval, and then have shown by proof, that they had such a title as was the subject of sale. If this auxiliary proof was not offered, the plaintiffs might then have called upon the court to reject the deed, or instruct the jury as to its legal effect. But the bill of exceptions does not thus present to us the legal question.
V. The letters from the defendant to Mrs. Duval, during her residence in Cuba, do not tend directly to destroy the title which the defendant had sought to establish by his proof; nor do they directly aid the plaintiffs’ title. And if they were admissible for any purpose, it was as indirect evidence to impair the defendants title, by showing that so far as it was deduced from Mrs. D. it had its origin in fraud, and was of consequence, void. In thus limiting the only purpose for which these letters to be received by the jury, it will follow from what we have said, that the circuit court did not err.
VI. The depositions taken in the suit in chancery, were rightfully rejected. Under the circumstances in which they
VII. It is unnecessary to inquire whether the land in controversy, lying between Water street and the channel of the river, vested in Hunt and the Caro’s, under the mortgages from Duval, or whether the plaintiffs, as the heirs of the mortgagor, are not entitled, under the act of Congress of the 26th of May, 1824, “ Granting certain lots of ground to the corporation of the city of Mobile, and to certain individuals of the said city,” as the question will not probably arise on a subsequent trial. In the case of the Mayor and Aldermen of Mobile v. Eslava, (9 Port. Rep. 577) it was decided that the act referred to, did not interfere with the rights of riparian proprietors, and that Congress did not possess the constitutional right to grant the shore of the navigable ivaters within the States. If the part of the land sought to be recovered in virtue of the act of Congress, was, at the period stated in the act, embraced (as it is supposed) within the limits of the shore, then the case cited, is decisive of the point.
VIII. We think the court very properly refused to instruct the jury that the purchases made by the defendant, of the real estate of Daniel Duval, did not inure to the plaintiffs so as to authorize them to recover at law. The plaintiffs did not make the defendant their attorney, and as he did not act in that capacity, they could not object to his purchases merely because he was an agent. Mrs. Duval did not, nor could have invested the defendant with authority to purchase the property of her intestate’s estate, for the benefit of those interested therein — nor does it appear that she ever insisted upon the benefit of any purchase made by him.
IX. By the twenty-first rule for the government of the practice in chancery, (1 Stew’t. Rep. 618) it is provided that “where a suit at law and a bill in chancery, are instituted for the same claim or demand, the defendant on suggestion, supported by affidavit, may move the court to inspect the records, and if it appear that the two suits are for one and the same cause of action, it shall be ordered that the plaintiff elect, in which he will proceed, and that he dismiss the other.
This rule is imperative, and requires that the plaintiff shall dismiss either his suit in equity, or at law, where the causes for which they are brought are identical. If therefore the circuit court upon an inspection of the records, was satisfied as to their identity, the refusal to permit the name of the defendant to be stricken from the record at law, or a nolle prosequi to be entered as to him was clearly proper, — the rule leaving no discretion as to the course of procedure.
The other questions arising upon the second bill of exceptions, cannot now be considered — they regularly come up, on a revision of the case in chancery.
Other points than those examiped have been raised, but the view already taken, will most probably lead to a decision of the case on its merits, and we consequently deem it unnecessary to notice them more particularly. Without attempting to recapitulate the various questions adjudged, we will content ourselves with declaring that the judgment of the circuit court is reversed, and the case remanded,