158 N.W. 780 | S.D. | 1916
Lead Opinion
Plaintiff, the assignee of a certificate of sale upon foreclosure of real estate mortgage, brought this action seeking a 'decree requiring the 'defendant Dunn, as sheriff, tO' issue to him, a sheriff’s deed on such foreclosure, and seeking to quiet his title to the land described in his certificate as against the claims of any of th-e defendants and especially against those of the defendant Gorman. Gorman claims an interest in and to said land as a redemptioner from the above-mentioned foreclosure sale; he claims that, as an attachment lienor claiming to hold an attachment lien upon said land, he tendered to- the plaintiff the amount necessary to redeem from the foreclosure sale and, after the refusal of plaintiff to accept -the same, did, within the period provided by law for redemption, pay the amount necessary for such redemption to the defendant Dunn as> sheriff.' This appeal is from an order of the circuit court overruling Gorman’s demurrer to the plaintiff’s reply.
The facts as presented by the demurrer are in brief as follows: One M., being the owner of the land in question subj ect to the mortgage upon which the above-mentioned foreclosure was afterwards made, entered into an executory contract with one L-, whereby M. contracted to sell the said land to' E. subject to the said mortgage, and to convey the same by warranty deed upon payment of foe agreed consideration, a part of which, consideration was paid upon the execution and delivery of such 'Contract; the balance to be thereafter paid. L. entered upon said land, but afterwards abandoned it, and without making any further payments', brought an action against M. for the rescission, of the contract. At the time of instituting such action, L. filed in the proper office a notice of lis- pendens. M., answering L.’s complaint and by way of counterclaim, alleged the full performance by him of the covenants of said contract, among other things alleging that under 'date of said contract he •had made a warranty deed conveying said land to L., and that,
Inasmuch as the deed tendered by M. was mot accepted, the relations of M. to L. — the rights- and obligations o-f each of them under the contract — were in no manner altered by such tender, except that it had -the effect of putting E. in default. 'Such tender of deed in no m-anner changed M.’s rights or-his interest in and to the said land. Wh.at the rights of- M. and L. were under the contract is well settled under all the authorities. It certainly has become settled in this state under the line, of decisions ending with
“Although possession may have been delivered to the vendee, and although under the doctrine of conversion the vendee •may have acquired an equitable estate, yet the vendor retains the legal title, and the vendee cannot prejudice that legal title or do-anything by which it shall be divested, except by performing the very obligation on his part which the retention of such title was intended to secure — namely, by paying the price according-, to the terms of the contract. To call this complete legal title a lien is certainty a misnomer. In case of a conveyance, the grantor has a lien, but no title. In case of a -contract for sale before conveyance, the vendor has the legal title, and has no- need of any lien; his- title is a more efficient security since the vendee cannot -defeat it by any act or transfer even to or with a bona fide purchaser.”
This interest which E. had in said land, by virtue of such contract, is sometimes spoken of as an equitable title. We think this term inaccurate, and that there never can, strictly speaking, be an}r “equitable title” except where there is a present right in the person tod be vested- with the “legal title”; in other words, there can- be no -equitable title until, by- fulfillment of -the covenants of the contract, the vendee has become -equitably entitled to the legal title, has become entitled- to- a decree of specific performance. As stated by W-arvelle, at section 176:
“The essential feature of an equitable title is that it is one which appeals to equity for confirmation and enforcement. Plence a mere contract or -covenant to convey at a future time on the ■purchaser performing certain acts does not create an- equitable title. It is only when thq purchaser .performs or tenders performance of all the acts necessary to' entitle him to a deed that*321 he has an equitable title and may compel a conveyance. Prior thereto 'he has, at best, only a contract for the land when he shall have performed his part of the agreement.”
“It will be seen that the decisions involving the lien of a judgment against the vendor are not in harmony, but it will also be noticed that the conflict is not caused by any differences of judicial opinion as to the soundness- of the doctrine -that the vendee takes an equitable title to the property. They are all in accord as to the nature of the title and interests of -the respective parties. The only point of difference between them is as to whether the substantial interest which remains in the vendor, and for the payment of which he holds the legal -title as security, is subject to the lien of a judgment.”
We believe that, under the overwhelming weight of authority, su-oh interest is subject to- the lien of a judgment and can be reache/d through air attachment of th-e land. Of the cases recognizing this rule, we cite a few: Dalrymple v. Security L. & T. Co., 11 N. D. 65, 88 N. W. 1033; Doak v. Runyan, 33 Mich. 75; Moyer v. Hinman, 13 N. Y. 180; Marston v. Osgood, 69 N. H. 96, 38 Atl. 378; Holman v. Creagmiles, 14 Ind. 177; Lefferson v. Dallas, 20 Ohio St. 69; Stewart v. Coder, 11 Pa. 90; Hardee v. McMichael, 68 Ga. 678; Coolbough v. Roemer, 30 Minn. 424, 15 N. W. 869; Filley v. Duncan, 1 Neb. 134, 93 Am. Dec. 337, and notes page 353; McMullen v. Wenner, 16 Serg. & R. (Pa.) 18, 16 Am. Dec. 543; note to Keirsted v. Avery, 4 Paige, (N. Y.) 9; Kinports v. Boynton, 120 Pa. 306, 14 Atl. 135, 6 Am. St. Rep. 706; Wehn v. Fall, 55 Neb. 547, 76 N. W. 13, 70 Am. St.Rep. 397; Snyder v. Martin, 17 W. Va. 276, 41 Am. Rep. 670; Hope
“It is everywhere conceded that a judgment lien accruing against a vendor after the making -of the contract of. sale extends to all his interest remaining in the land, and entitles the purchaser at the sale to all sums still to 'be paid by vendee.”
Later, in section 181, Freeman- on Executions (3d Ed.), this same author recognizes that the rule is 'different in four states; ¡but he says:
“W-e are, however, entirely unable to understand how the interest of a vendor, while he retains the legal title, and has the right to continue to retain it, because the contract of purchase has not been performed, can be held not subject to execution to the extent of transferring by an execution sale the precise --interest held by the vendor.*
In those states where there are decisions not in harmony with the majority rule, it will -be found that general^ there was involved the -conflicting' claims of a vendee in possession and the party -claiming under execution or attachment sale against-vendor. Such cases will be found to turn upon the fact that possession was taken and retained by-the vendee. We do not believe -a single authority could be found holding the vendor’s interest not subject to be reached by a lev)!- on the land, where, as in filis case, at the time of levy the vendee had abandoned the land- and was denying the validity of the -contract. Under such facts, there is left no- -one- with any right or interest, legal or equitable, that can authorize him to question a creditor’s right -to proceed against the land.
It is an established rule of law that -an equitable estate in lands, such as that of a vendee under an executory contract, is not subject to the lien, of a judgment or to levy under attachment or -execution in the absence of some statute authorizing same. It would follow that, if the interest of the vendor was not subject to- lien of judgment, all that would be necessary in order to put land -where it would be free from judgment liens would
' Inasmuch as plaintiff is seeking relief in equity, it might not be improper to note the results that would flow under each contention urged before us. The land in question is alleged to be worth $6,500. This allegation is undisputed. The foreclosures sale was for $3,485. That amount with interest measures plaintiff’s equitable rights. This amount, to-wit, $3,724.89, was tendered him and has been paid to the sheriff as redemption money. Under no principle of justice 'is he entitled to- another cent. This leaves an equity of nearly $3,000 belonging to M. Justice and equity demand that M. get the benefit thereof. This he would get through the application of same to the payment of Gorman’s claim. Gorman’s claim' is- in exceess of this equity, and M. -is insolvent; therefore Gorman is equitably entitled to relief. The law gives a -clear method of enforcing justice among these parties. Gorman has followed this method and is entitled to have the same approved and his rights enforced.
The order appealed from is reversed.
Dissenting Opinion
(-dissenting.) This action was -commenced on the'25th day of March, 1914, to determine adverse title and equitable interests 'in and to the southeast quarter of section 6, township 114, range 52, in Hamlin- -county; the plaintiff claiming to be the owner thereof under and by virtue of a mortgage foreclosure sale. The defendant Gorman, interposed a counterclaim claiming to ibe entitled to said land as owner thereof by virtue of attachment levy and judgment and redemption thereunder from the mortgage sale under which plaintiff -claims. Plaintiff by reply and as. a defense to this counterclaim alleged matter tending to show that defendant Gorman is estopped and legally precluded from claiming any interest in said lama under -his attachment levy and judgment. Defendant Gorman interposed a general demurrer to this portion of the reply on the ground that the same did not constitute a -defense to' said ■counterclaim. From, an order overruling s-uch demurrer, defendant Gorman appeals.
The facts disclosed by said pleadings material to a disposition of the question 'here presented, and which, for convenience, we classify under three divisions, are substantial these: (1) On the 2d day of July, 19.09, one W. S. Madden, who was then'the fee-simple owner of said southeast quarter of section 6, as a mor-t-
The ahatter contained in plaintiff’s reply to which the demurrer was1 interposed) alleged the facts in relation to, the contract of sale of said' land by Madden to, Lenth and .the suit of Lenth /. Madden and the judgment rendered therein. It is the contention of respondent that Gorman, neither under the attachment levy nor under the judgment, as plaintiff in the suit of Gorman v. Madden et al., obtained and acquired a lien upon or against the land in question, and by reason thereof had no legal right to malee redemption under the Gould) foreclosure; that notice of the pendency of the suit of Lenth, v. Madden having been filed and being of record- long’ prior to, such attachment levy and judgment in the Gorman v. Madden suit, and the judgment in 'the Lenth suit having adjudicated that Lenth became the owner of said real estate in September, 1909, and that Madden had no- interest in said land in 1912 that was subject to levy under attachment or subject to the lien of the judgment for plaintiff in the Gorman v. Madden -case, the defendant Gorman in this -case became concluded and bound by the judgment in the Lenth case. I am of the -opinion 'that the 'demurrer to plaintiff’s- reply was ¡properly overruled. It is a well-established' rule
The crucial question in this case is whether Madden had parted with- -bis title before the 25th day of January, 1912, at the time the Gorman attachment was levied on the land. It seems, to me that the -majority .opinion wholly loses sight of the-fundamental foundation principle that is involved in the .performance of such transactions and1 contracts relating to the sale-of property. It will be observed! that the contract 'between Denth and Madden was not a unilateral option -contract containing-specific precedent conditions, and time being of the essence thereof, and! where title -could not pass, until the performance of such precedent conditions, but it was a plain unconditional sale-for so- much money agreed to be paid in a certain maimer on a. certain date. Much that was -said in State v. Weide, 29 S. D. 109, 135 N. W. 696, directly applies to this case as- to the effect of such contracts. The kind of contract here involved is considered’’
Again, Madden could not foreclose a purchase-money lien against his own land, and against land in which he himself held title, but it was because title was in Lentil that the court could decree a foreclosure of the purchase-money lien. This, also, appeared from the pleadings in the Lenth case. Gorman should have levied upon the chose in action belonging- to Madden, instead of making a levy on the land itself.
The judgment appealed from should be affirmed.