Paschal v. . HarrisPaschal v. . Harris
- Reporters:
- Before:
- PjbabsoN
The plaintiff’s intestate had an equity of ■redemption, but it wаs subject to a power of sale. An equity of redemption is a valuable interest which may be sold by the mortgagor and at sheriff’s sale ; and it is. such an interest as may be devised and will desсend to heirs. Chap. 45, sec. 71, Battle’s Revisal, еmbraces an equity of redemption; but in our case the equity of redemption was subject to a power of sale, and when the power was executed, it took from the plaintiff all pretext in support of the pеtition and he had no foundation to stand on. The right of the intestate and of his heirs and of the аdministrator, was divested by the sale. Whether the mortgagee and the purchaser under the power of sale are subject to the lien of the docketed judgments, or whether they can get rid of the lien of the judgments, as purchаsers for value without notice by reason of the laches of the judgment creditors in delaying to sue out executions for more than three yeаrs, are questions with which the plaintiff has no concern.
If the creditors -who have dockеted judgments wish to make the question, it must be done by sоme proceeding on their part: for instance, let them issue executions and sell thе land; then the purchaser under the exeсution and the purchaser under the power of sale in the mortgage can have а “ fair fight,” and the question be put on its merits. In this action, the plaintiff is interfering officiously in regard to а matter which does not concern him onе way or the other.
We listened with pleasure to the argument of Mr. Gatlings *338 because it was ablе and well considered; because be discussed tlie point on which his Honor put his decisiоn, and because the argument suggested a nеw doctrine so far as the decisions of оur court extend, to wit: can a lien, valid at law, be defeated on the plea of “ a bona fid’ purchаse for full value without notice and in the second place, can the failure of a judgment creditor to issue execution for three years after judgment docketed excuse, a purchaser of negligence in not making inquiry of him, and in lending his money upon the bare word of the debtor in the execution, that the judgmеnt has been satisfied ? Upon these questions we, at this time, say nothing. His Honor put the decision upon the wrong point; it should have been on the point that the plaintiff had nothing to operate on and his petition was f anotas ojfioio by a sale under the power in the mortgage.
Error. Reversed. The petition must be dismissed. This will be certified.
Per Curiam. Judgment reversed and petition dismissed.