5 Port. 182 | Ala. | 1837
The assignments of error and the argument for the plaintiffs, assert that the decree of the County Court is too defective to authorise the issuance of an execution, and that the execution is in other respects, irregular and void. If
We proceed now to examine the questions arising upon the motion in the Circuit Court for instructions to the jury, and the refusal of the Court to give them. And these are—
First — Is the deed from Edward B. Elliott to the plaintiffs, founded upon a sufficient consideration!
Second — Had Edward B. Elliott such an interest in the property conveyed by the deed, as subjected it to levy and sale, to satisfy a judgment against him!
Third — Are the terms of the deed such as to make the property subject to the defendant’s execution!
1st. — A principal is under a moral obligation to save his surety harmless, if he have the ability to
In Suffield vs Bruce,
In the case of the United States vs Hooe,
The Chief Justice, in delivering the opinion of the Court, remarks: “That the property stood bound for future advances, is in itself unexceptionable. It may indeed be converted to improper purposes, but it is not positively inadmissible. It is frequent for a person who expects to become more considerably indebted, to mortgage property to his creditor as a security for debts to be contracted, as well as for
In Marsh vs Lawrence,
This question seems so clear upon principle as well as authority, that we cannot doubt but the deed bears on its face, evidence of a sufficient consideration. If the fairness indicated by the deed, be unfounded in fact, it was entirely competent for the defendant to have attacked it for extrinsic causes; but no effort of this kind was made.
2d. The interest of Edward B. Elliott, in the slave, was a mere equity without even possession, for one of the plaintiffs had that, at the time of the levy. The deed must be considered as an indemnity in the nature of a mortgage, with a power of. sale to the plaintiffs; and must be scanned by those rules, which are applicable to mortgages of the personalty. Anciently, mortgages, technically so called, were confined chiefly, if not entirely, to the realty; at this day, they embrace both descriptions of property. In regard to lands, after the mort-guage had become forfeit, the equity of redemption could not be sold under an execution *
But the law is laid down differently by Chancellor Kent, (in the 4th of his Com. 154,) who says that though the day of the payment of the money, intended to be secured, has past, so that the mortgage is forfeited, yet the mortgagor, “while in possession,
lathe case of M’Gregor & Darling vs Hall,
In the case of Wilkes et al vs Ferris,
In Badlam vs Tucker et al.
“The judgment of the Court in that case, was sanctioned by the Court of Common Pleas in the case of Metcalf et al. vs Scholey et al.
The Court then, after stating the creditor has a remedy in equity, and may possibly remove the in-cumbrance himself, concludes, “but until payment, or tender of payment of the money due to the paw-nee or mortgagee of goods and chattels, it is very clear that the creditor of the pawnor or mortgagor has no remedy against them by attachment and execution.”
In the case of Marsh vs Lawrence,
This case goes the entire length of determining that an equity of redemption of personal property, with possession in the mortgagor, can not be sold on execution. And if such be the law in New 'York, the Courts of that State, must distinguish between a mortgage of personal and real estate, either under the influence of a statute, or from a consideration of the dissimilar qualities of these descriptions of property. We do not deem it necessary, or even proper to go to this extent, (though we might believe such to be the law,) as this Court, in the case already cited, determined that there was no distinction in this respect, between an equity of redemption in personal and real estate, and because the case at bar is distinguishable from that, in the mortgagor having parted with the possession in favor of the mortgagees.
Without pretending then to interfere with any principle adjudged in the case of M’Gregor & Darling vs Hall, we are of opinion that a mere equity unaccompanied by possession, cannot be reached by execution, and that the interest of Edward B. Elliott being of this character, was not .subject to levy and sale.
3d. The mere fact of the property being conveyed as an indemnity to the plaintiffs, as sureties of the executor of the will of John Spencer, senr. does not authorise a creditor or legatee of that estate, to
By the terms of the deed, the plaintiffs are invested with a discretion, as to the time and place of sale of the property conveyed, whenever their liability is fixed, as the sureties of Edward B. Elliott. This discretion is of importance to them, and may enable them to sell the property for a better price than it would command at a forced sale, under execution.
The motion for instructions to the jury, placed ‘the case in. the most favorable predicament for the defendant. It impliedly admitted that the property might be condemned, if there were no other demands against the executor, than the one in con™ troversy. We do not pretend to say that this admission was not proper in point of law, but certainly,. if there were other outstanding claims, the plaintiffs should not be required to forego the advantage of a sale, directed by their discretion, as to time and place, and have the property forced from them at the hazard of a loss. We are satisfied that the deed, followed as it was by delivery of the property, passed such an interest to the plaintiffs, as
Having considered the material questions arising, in this case, we will briefly examine one or two other points, discussed at the bar, which do not influence our judgment here; but yet are worthy of notice, as settling the practice.
And first, as to the issue submitted to the jury,—this did not assert the liability of an equity of redemption to the defendant’s execution, but the entire property in the slave, without incumbrance. A verdict responsive to this issue, in favor of the defendant, would have determined all interest and title in the slave, to be subject to the execution,- and thus have deprived the plaintiffs of all benefit to be derived from their mortgage. And this might have been the result without any proof shewing the mortgage to be defective for extraneous causes. The issue should always conform to the nature of the interest sought to be subjected—if an equity of redemption, it should be so expressed, and if there is no qualification, it must be supposed to be the en-tire interest which is proceeded against.
Under the issue submitted to the jury in this case, had the slave been sold-in pursuance of the verdict and judgment of the Circuit Court, and have yield-ed a sum, (as in all probability he would,) more than adequate to satisfy the execution, the excess-under the statute, instead of going to the plaintiffs, would have went to Edward B. Elliott; and this too, though the mortgage was free from objection.
From a view of this case, as presented, the judgment of the Circuit Court is reversed, and the cause remanded.
4 Stew. & Porter 237.
Chitty on Con. 10.
1 Burr 474.
2 Stark R. 175.
1 Pick. 389.
4 Cowen R. 461.
2 D. & E. 462.
3Stew. & Porter 397.
5 Johns. R. 335.
Hard. 19.
1 Pick. R. 399.
8 East 467
5 B & P. 467.
4 Cowen 461.
Aik. Dig. 162 §13.
Saun. R. 11-n 17-& m.