66 Mass. 344 | Mass. | 1853
The whole court, after argument, are of opinion that the instructions and direction proposed to be given at Nisi Prius, in this case, were correct, and that any evidence tending to show that the conveyances of Nathan Perry to his son William were without consideration and void as against the creditors of Nathan, would have been immaterial, because the tenant was not a creditor, and had no such conveyance under a creditor of Nathan Perry as would give him any title.
In the present case, we think both parties must assume that the deed from Nathan Perry to Alden, together with a simultaneous bond of Alden to Perry, to reconvey on a condition, constituted a mortgage; that the bond was strictly á bond of defeasance, and rendered the conveyance a defeasible one, which is the definition of a mortgage. The tenant must assume this, because otherwise Nathan Perry never made any mortgage to Alden; he had no equity of redemption; William Perry of Exeter, as a creditor of Nathan, could seize and sell no equity of redemption ; and the officer’s deed to the tenant was simply a nullity. Supposing these documents together constituted a mortgage, and left an equity of redemption in Nathan, that .equity was an assignable interest; it was the
But, says the tenant, these conveyances of Nathan Perry to his son were made without any consideration, and so were fraudulent and void as against creditors; William Perry, of Exeter, was an execution creditor of Nathan, and had a right to avoid the voluntary and fraudulent conveyances of his debtor by taking the estate; the sheriff was an officer of the law, authorized to take the property so fraudulently conveyed, and sell it in the mode prescribed by law, execute a deed to the highest bidder, and that deed will give a good title to the purchaser.
Supposing this to be substantially a correct view of the law of debtor and creditor, the question still recurs, how can the property thus conveyed without consideration be appropriated and made available by a creditor for the satisfaction of his debt ? If the property be real estate, if it be absolute, and not a right to redeem, it must be set off at the appraisal of men, in the manner provided by law, from the debtor to the creditor, and taken and held by the latter in satisfaction of his debt. In the case of an equity of redemption, where the es tate is subject to one or more mortgages, by statute, the exe cution creditor, by the proper officer, is authorized to cause such equity of redemption to be taken on the execution, and advertised arid sold by the officer. The reason is very obvious; the estate may be. mortgaged for only a small part of its value, or nearly or quite to its whole value, and such a sale will enable a creditor to avail himself of the difference, if there be any, between the value of the land and the incumbrances. Setting off by metes and bounds, or by an undivided part, would be wholly inapplicable. In no other case does the law warrant
But it appears to us that the proper mode of regarding the attachment on mesne process is, to consider it as an attachment of the estate. Of course, it must operate according to the nature of the debtor’s rights in it. If it be under mortgage, the attachment binds the equity" and if it.so continues till the levy of the execution, it must be treated as an equity, and levied and sold according to law; but if, in the meantime, the mortgage has been paid and discharged, or otherwise removed, it is then an estate not subject to mortgage; it is absolute, and must be set off by metes and bounds, and by appraisement.
In the present case, it appears that whatever interest Nathan Perry had in the estate, or whatever his creditors had at the time of the attachment, in consequence of any conveyance of his, fraudulent as against them, the mortgage had been paid and discharged, and the estate had become absolute either in Nathan or William Perry, before the execution was levied, so that whatever right the execution creditor had, to make that estate available to the payment of Nathan Perry’s debt to him, was a right to levy on it specifically, not to sell the supposed equity of redemption.
It was intimated and somewhat urged in the argument,
Judgment on the verdict for the demmdmt.