8 Mo. 188 | Mo. | 1843
delivered the opinion of the Court.
This was a bill in chancery, filed by Margaret S. McNair, the widow and administratrix of Alexander McNair and the heirs of the said McNair, against the defendants, the executors and heirs, and devisees of John Mullanphy, deceased.
It is alleged in the bill, that Alexander McNair, being indebted to John Mullanphy, on the 26th day of January, 1820, executed to him his bond for the sum of $5,500, payable one year after date; and to secure the payment of the said sum, McNair and his wife executed to Mullanphy a mortgage in fee on the following described parcels of land and lot in the county and city of St. Louis, viz.: A lot of ground about six miles north of St. Louis, 2 arpens in front and forty in depth; also, a tract adjoining the last mentioned parcel on the north, seven arpens in front and forty in depth, both bounded on the east by the Mississippi river, and formerly owned by Antoine Morin; also, a lot in the city of St. Louis, on Main-street, 150 feet deep, bounded on the east by Main-street, and on the north by a lot formerly owned by Patrick Lee.
On the 30th November, 1820, McNair executed another bond to Mullanphy, in the penal sum of $1,000, conditioned for the payment of $500 one year after date. To secure the payment of this bond, the tracts of land above described were again mortgaged by a deed executed by McNair on the 16th December, 1820.
By a deed bearing date 17th April, 1821, McNair and wife mortgaged in fee to Mullanphy, for the purpose of securing the payment of another sum of $3,951, with interest, many other lots in the city of St. Louis and town of St. Charles, and lands in the counties of St. Louis and Jefferson.
Mullanphy, on the 18Lh day of August, 1823, commenced an action of debt against McNair, on the bond for the sum of $5,500, and recovered judgment against him on the 2d day of July, 1824. On this judgment, an execution was issued returnable to the October term', 1824, of the St. Louis Circuit Court, under which the sheriff seized all the property that was mortgaged, to secure the debt for which the judgment was rendered; and also all the property situate in St. Louis county and city, mortgaged on the 17th day of April, 1821, to secure the payment of the debt of $3,951. At the sale, Mullanphy became the purchaser of all the property included in both mortgages, for the sum of $2,700, except one lot, 38 feet wide and 120 feet deep, included and described in the last mortgage, which was purchased by Robert Rankin, for eighty dollars.
It is also alleged in the bill, that Mullanphy attended the sale in person, bid for each piece of property as it was offered, and, for the purpose of intimidating purchasers, and causing a ruinous sacrifice of it, in his own favor, proclaimed to
In consequence of such conduct, many persons were deterred from purchasing the property, and the same, .with the exception aforesaid, was knocked down to Mullanphy.
After this sale, on the 13th December, 1824, Mullanphy filed his petition in the St. Louis Circuit Court, against McNair and his wife, to foreclose their equity of redemption to all the lands and lots included in the third or last mortgage, situate in St. Louis county. On this, such proceedings were had that a judgment was entered in these words: “ That, if the said Alexander McNair, and Margaret S., his wife, do not well and truly pay, and satisfy, to the said John Mullanphy, or his legal representatives, the sum of five thousand five hundred and sixty-four dollars, and twenty-two cents, the debt and interest in the petition mentioned, with legal interest on the sum of three thousand nine hundred and fifty-one dollars, together with his costs and charges, on or before the third day of November next, (1825,) then the sheriff of St. Louis county is required and commanded to sell, on the said third day of November next, the mortgaged premises in the petition mentioned.”
No steps have since been taken to carry into effect this judgment. The first two mortgages were never foreclosed, otherwise than by the sale above mentioned, after which Mullanphy took and retained possession of all the property he purchased at the sale, until his death, which occurred on-the 18th day of September, 1833, having made a will, and appointed John O’Fallon one of his executors. McNair died on the 18th day of March, 1826. The bill charges that the mortgage debts have been paid, or might have been paid, out of the rents and profits of the land and lots purchased by Mullanphy, and prays for an account and permission to redeem.
Upon filing the bill, the judge of the St. Louis Circuit Court being a party to the cause, it was sent to the Court of Common Pleas.
Robert Rankin, who was made a party, admitted, in his answer, that he was present at the sale on the 6th October, 1824, and became the purchaser of a lot, as charged, for which he received a deed from the sheriff. He did not know that McNair set up any claim to the lot; that he purchased it in good faith, and has paid the purchase money. The answer of. Rankin being excepted to, for not responding to that part of the bill in which oppressive conduct is charged against, Mullanphy at the sale, and for not stating the value of the property sold, and the exceptions being sustained, he further answered, that he was at the sale; that Mullanphy was present, and proclaimed to the bystanders that whoever purchased any part of the property offered, would purchase a law-suit; that he held a mortgage on the property for a large amount; that when he, Rankin, bid for the lot he purchased, Mullanphy warned him not to bid, that he was buying a law-suit. He cannot state the value of the property purchased by Mullanphy, but his .opinion then was, and still is, that Mullanphy obtained it for much less than its real value, and for. much less than it would have sold for, but for his interference and threats.
Many points were made in the argument of this cause, to all of which we shall not advert, deeming it unnecessary, but will confine ourselves to the most important, and those in which the merits of the cause are involved.
The first question made was, whether an equity of redemption could, before the revised laws of 1825, be sold on an execution at law ? This question has been twice argued very elaborately in this Court, and it must be confessed, is not without its embarrassments. It may be admitted that, in England, there cannot be a sale of an equity of redemption upon a mortgage for a term of years; but if we consult the decisions of the American courts, authorities entitled to great respect are to be found in support of either side of the question, and this contrariety of views must, in a great measure, be attributed to the different lights in which a-mortgage is viewed in courts of law and equity. The severe features of the ancient common law in relation to mortgages have been relaxed, and the opinion that a mortgage is a mere security for a debt has been steadily gaining ground in courts of law. This is the equity view of the subject, and Chancellor Kent remarks, that courts of law have, by a gradual and almost insensible progress, adopted the equity views of this subject, which are founded in justice, and accord with the true intent and inherent nature of every such transaction ; and he continues, that in this country the rule has very extensively prevailed, that an equity of redemption was vendible, as real property, on an execution at law. In the case of The King vs. St. Michael’s, Doug., Lord Mansfield declared, it would be an insult to common sense to say the mortgagor is not the real owner of the mortgaged property. Lord Hardwick, in the case of Cashborn vs. Inglis, 1 Atk., 603, said an equity of redemption had always been considered as an estate in the lands, for it might be devised, granted, or entailed with remainders, and such
The statute in force here, under which the sale now the subject of consideration took place, is in these words: — “All lands, tenements, and heriditaments
It is a sound moral principle, that every species of property owned by a debtor should be subject to the payment of his just debts. At the date of the act above referred to, subjecting lands to sale under execution, nearly all the titles in the territory were equitable. The'fee was in the Government, and had passed to but few. There was no court of equity as contradistinguished to a court of law. Courts of equity were not organized until the year 1811. (Geyer’s Digest, 105.) As considerable estates might be mortgaged for small debts, it would follow, if the equity of redemption could not be sold under execution, the creditors would be deprived of one of the resources for payment of their debts. There is no doubt, that by the common law, equitable interests in lands might be subjected to the payment of debts by suitable proceedings in a court of equity. The strife was, whether they should be liable to execution at law. Then, there being no court of equity here, as contradistinguished from a court of law, all equitable interests in lands would be freed from the payment of debts; an exemption we cannot think contemplated by the legislative power. In Pennsylvania, where law and equity are blended in their system of jurisprudence, and equity, as contradistinguished from law, is unknown, at least in the administration of justice, it is a well-settled principle that a judgment is a lien upon every kind of equitable' interest in land, and that such interests could be sold by execution at law. (Carkhuff vs. Anderson, 3 Bin., 8.) Such seems to have been the system of jurisprudence in this territory from 1804 to 1811; and if, during that time, equitable estates might be sold under execution, and the terms, “ lands, tenements, and hereditaments,” comprehended such interests, the mere creation of a court of equity afterwards would not restrain their signification to legal estates only.
Again: The 66th section of the act concerning judicial proceedings, (Geyer’s Digest, 267,) in force at the time of the sale now under discussion, directed, that the sheriff, after a sale on execution, should give the buyer a deed, duly executed and acknowledged in court, for what is sold, which deed shall recite the execution, purchase, and consideration, and shall be effectual for passing to the purchaser all the estate and interest which the debtor had, or might lawfully part with, in the lands, at the time the judgment was obtained. If all the estate and interest which the debtor could part with passed by the sheriff’s deed, then all his interest and estate were sold; for surely it was not the intention of the legislative power that the purchaser should have a deed for more than he
The next question we shall examine is, whether a mortgagee could institute a suit at law to recover the debt secured by the mortgage, take out execution, and sell the equity of redemption of the property mortgaged to secure the debt for which suit was brought ?
In an examination of the books, cases are found in which such proceedings have been tolerated. I say “ tolerated,” for no case can be produced in which the question between the mortgagor and mortgagee arose, that has received the unhesitating sanction of a court. The confusion and embarrassment consequent upon such a step would disincline any court to give it its countenance. What is the sense of the thing, when the mortgagee, under execution, sells the equity of redemption of the property mortgaged to satisfy the debt? It is an admission that it is worth something over and above the mortgage debt. If not, why sell? What object can the mortgagee have, unless it is to unite the legal and equitable estates, and thereby defeat a redemption? If the mere equity of redemption is
But we will not rest our opinion on the opinion on the considerations above stated. The cases above cited all occurred where there were no statutory provisions on the subject of the foreclosure of mortgages, especially provisions of a character beneficial to the mortgagor, and which guarded and protected his equity of redemption against too speedy a foreclosure. Hence, in those States where
The statute of 1807, concerning the foreclosure of mortgages in force when the sale took place, which is now the subject of consideration, conferred on the mortgagor rights of some importance, of whioh he was deprived by selling his equity of redemption, at the suit of the mortgagee, for the mortgage debt. That statute, in proceedings to foreclose, required twenty days’ service of process before the return day, whereas, in ordinary proceedings at law, service fifteen daye before the return term was sufficient. Moreover, the statute directed that the sale of the mortgaged premises should be at least nine months from the commencement of the process of foreclosure. The statute, in declaring that the sale should be postponed at least nine months from the commencement of the suit, did not intend that that should be the precise period at which the sale should take place, but from the manner in which it is worded, it is clear that the court had a discretion, and might, and, no doubt, would, upon showing sufficient cause, extend the time. All that was required was, that the sale should not take place in less than nine months; if that time was prolonged by the court, there was nothing in the statute to prevent it. In proceedings to foreclose mortgages in England, nothing was more usual than to extend, from time to time, the right to redeem. In the ordinary course of proceedings, lands might be sold in less than nine months, and this actually occurred in this cause. The method of procedure adopted by the mortgagee deprived the mortgagor of advantages secured to him by law; we are therefore of the opinion the sale was void.
The determination of this point establishes the right to redeem the land included in the first mortgage. It remains to be ascertained whether the complainants have a right to redeem that included in the third. It seems strange that we should be called upon to decide this question, when there is a solemn admission by Mullanphy that Lhis right exists.
There is a decree of foreclosure in evidence, that unless A. McNair pay to John Mullanphy the sum of $5,564 22, on or before the 3d day of November, 1825, that the mortgaged premises be sold. Mullanphy, before his death, nor the defendants since, have carried this decree into effect; it is unreversed, and is still binding; and is a solemn admission of McNair’s right of redemption. That judgment or decree is an estoppel, and the defendants are precluded from deny
The determination of the two last points settles this controversy, so far as the representatives of Mullanphy are concerned. To what extent, and in what manner, O’Fallon and Rankin may be affected, we give no opinion, nor, in alluding to them, do we mean to intimate that they will be effected by the decree which will be pronounced in this cause. We have mentioned them merely, that it might not be supposed they were overlooked. Nothing having been said in the argument in relation to the liability of the property held by them to redemption, we have deemed it most advisable to suffer that question to be determined in the court to which the cause will be remanded.
Decree reversed, and cause remanded.