Glidden v. Doe ex dem. Andrews
10 Ala. 166
Ala.
1846
Check Treatment
GOLDTHWAITE, J.

-1. All the points made by the defendant, rest on the supposed irregularity or invalidity of the decree, in the mortgage suit of Andrews & Brothers, growing out of the fact that the defendant is no party to that suit, nor in privity with any of the defendants. But conceding the invalidity, or even the nullity of that decree, in our judgment the consequences do not follow, for which the defend*170ants counsel.contends. The question as to the effect of a decree of foreclosure on persons in interest not made parties, was before this court in Duval’s Heirs v. McLoskey, 1 Ala. Rep. 708. There the purchaser under such a decree insisted he was invested with the legal estate of the mortgagee in consequence of the purchase, and was exrtitled to set it up to defeat the suit of the heirs of the mortgagor, who were not parties to the decree, their ancestor having died pending the suit. The court then held the master’s sale and conveyance did not operate as an assignment of the legal estate of the mortgagee. It is put as a quere whether equity would not afford relief to a purchaser under a void decree, by subrogat-ing him to all the rights of the mortgagee, to the payment of whose demand the purchase money had been appropriated, and thus keep the mortgage alive as against the mortgagor and his heirs. In Watson v. Spence, 20 Wend. 260, the suit was ejectment, by one claiming under a conveyance from the mortgagor, against the purchaser, under a decree of foreclosure in a suit to which the mortgagor was the sole party. The supreme court of New York held, the defendant was not entitled to set up the outstanding legal title of the mortgagee. These decisions show the purchase under a decree, to which the heir or assignee should be, but is not a party, does not operate to convey the legal title of the mortgagee for any purpose whatever.

2. It is true, these decisions cannot be considered beyond this, as deciding what interest or estate does pass to the purchaser under such defective proceedings, or to what exten tsuch are operative to affect the legal title with which the mortgagor himself is invested by the mortgage ; but it was scarcely possible to enter on the cases without in some manner adverting to these points. We have seen it put by this court as a quere, if the purchaser was not subrogated to the rights of the mortgagee, in consequence of the payment to him of the purchase money. It is possible his right might extend beyond this, as nothing passes by the purchase, but if the right of subrogation exists, there seems no other way to make it effectual if the mortgagee is not compelled to use the legal title for the use of the purchaser. However this may be, (and we decline now to examine any of the questions involv*171ed between the purchaser and the other parties,) it seems clear, when the proceedings are so defective as not to pass the mortgagor’s equity of redemption to the purchaser, the foreclosure has failed to have its proper effect, and the decree operates nothing to bar the legal title of the mortgagee. In the case just cited from New York, it is said to be impossible by such a proceeding, at all to improve, though certainly it would not impair the right personal to the mortgagee to have a strict foreclosure. Indeed, if the defendant is not affected, as the purchaser under the mortgagor, by the decree to which he is not a party or privy, we do not see how he can properly contend the mortgagee’s rights to a recovery at law are in anywise impaired. This, in our judgment, is the only conclusion to be come at, that as between the mortgagee and this defendant, the decree operates no change whatever, and that each has the same rights, as against each other, as if no foreclosure had been attempted. It becomes evident now, that if the plaintiff in this suit is armed with a demise from the person having the legal estate of the mortgagee, the defence cannot prevail.

3. It is not a matter of importance to inquire now whether the title passed by the assignment of S. Andrews to Joseph J. Andrews by the deed of trust, inasmuch as the defendant requested no charge upon the effect of each demise. The charge was that upon the whole case, the plaintiff, i. e. John Doe, was entitled to recover. In this form of action it is not material to inquire whether the damages recovered would go in discharge of the mortgage debt, or to E. L. Andrews, as the purchaser under the mortgage sale. In several demises of this nature each lessor is presumed to assent to the action, and the use of his title by the nominal plaintiff. [Adams on Ej. 188; People v. Bradt, 7 Johns. 539.] This being the settled law of this action, it must follow that any sum recovered and paid, will go to the lessor having the title. If, in this case, it was necessary to ascertain which was the title to be recovered, the opinion of the court would be properly elicited by asking instructions on each demise.

4. Without intending so to decide, we may remark, that it deserves consideration whether the legal title of a mortgagee will pass to a trustee, under a general conveyance of *172all his real and personal estate, in trust to pay debts. [See Lewin on Trusts, 245; Roe v. Reade, 8 Term, 118.]

It is scarcely necessary, we presume, to add, that this recovery will not prevent the defendant, if he chooses to do so, from filing his bill to redeem. Judgment affirmed.