13 Fla. 169 | Fla. | 1869
delivered the opinion óf the court.
The first ground of demun’er in this case is, that the complainant shows by his bill no right to the discovery or relief sought. The bill is filed for the foreclosure of a mortgage alleged to have been duly executed by Eichelberger, a defendant, and acknowledged and recorded, and that there is due by its conditions over twelve thousand dollars. It prays a decree for the amount to be found due, and that it may be satisfied out of the property mortgaged, by a foreclosure of the equity of redemption. It alleges that the defendants have conspired and confederated to defeat and deprive him of his mortgage lien by certain unjust and inequitable acts, and have placed obstructions in the way in order to prevent him from enforcing his legal and equitable rights as a mortgagee, demands the removal of those obstructions, and that he may have such relief as he may be equitably entitled to without detriment or injury to any other person.
Let us look at the facts as they are stated in the bill. The
Why the amount of the Royall execution was not accepted by the sheriff or by the owners of the execution when offered and tendered, and why the sheriff refused to sell the town property, or a small fraction of any of the property under the circumstances, so that the complainant might preserve some adequate security for his mortgage debt; or why
"Where a party has two funds out of which he can satisfy his debt, and another creditor has a lien posterior in point of time on one of the funds only, the first creditor will, in equity, be compelled to resort to that fund which the junior creditor cannot touch, in order that the junior creditor may avail himself of his only security, where it can be done without injustice or injury to the debtor or creditor. This principle, which is so equitable and just, was thus illustrated by Lord Hardwick in Lanoy vs. The Duke and Dutchess of Athol, 2 Atk., 446 : “ Suppose,” he said, “ a person who has two real estates mortgaged both to one person, and after-wards only one estate to a second mortgagee, • the court, in in order to relieve the second mortgagee, have directed the first to take his satisfaction out of that estate only which is not included in the mortgage to the second mortgagee, if that is sufficient to satisfy the first mortgage, in order to make room for the second mortgagee.”
But a court of equity will take care not to give the junior creditor this relief if It will endanger thereby the prior cred. itor or in the least impair his right to raise his debt out of both funds. Evertson vs. Booth, 19 John., 486. And it is ■further held in that case that the junior creditors might Lave applied to pay up the prior incumbrance, and thus substituting themselves in the place of the prior mortgagee, have availed themselves of all his rights • and in Schreyver vs. Teller, 9 Paige, 173, the Chancellor says: “ If the judgment creditors were seeking to enforce collection of them judgments against the mortgaged premises, (their-judgments being also a lien upon other lands,) to the prejudice of the mortgagee, he would have an equitable - right to insist that
The equitable and legal rights of junior incumbrancers in such cases, and the duty of officers in making sale, are thus emphatically treated by Chancellor Kent in Woods vs. Monell, 1 John. Chy. R., 502 : “ I have no doubt of the value and solidity of the rule, that where a tract of land is in parcels distinctly marked for separate and distinct enjoyment, it is, in general, the duty of the officer to sell by parcels, and not the whole tract in one entire sale. To sell in parcels is best for the interests of all the parties concerned. The property will produce more in that way, because it will accommodate a greater number of bidders and tends to prevent odious, speculations upon the distress of the debtor. Nor does the officer act within the spirit of his authority if he sells more than is requisite to satisfy the execution. To sell a whole tract when a small part of it would be sufficient, or probably sufficient for the purpose, is a fraud that ought to set aside the sale. .The principle which I have-suggested has received a judicial sanction, (Rowley vs. Webb, 1 Binney, 61 ; Extrs. of Stead vs. Course, 4 Cranch, 403 ; Hewson vs. Deggert, 8 Johns., 333,) and whenever a case comes fairly within the reach of it, I shall very willingly adopt and apply it.”
The cases of Clowes vs. Dickenson, 5 Johns. Chy., 235, and Gill vs. Lyon, 1 J. Chy., 447, cited by counsel, and many other cases which we have examined, are so uniform and so pointed in the same direction, that we think there can foe no conflict of opinion in regard to the question here presented.
The purpose of the plaintiff in the Royall judgment, or of the owners of the execution, was, legitimately, to collect the amount due thereon. The acceptance of the payment tendered by a junior creditor having a lien upon a portion of the property, made for the evident purpose of protecting his rights, would have given the prior creditor all that he could get by the delay and the expense of making a sale. The request of the mortgage creditor that the prior creditor first exhaust the defendant Eiclielberger’s other property already under levy before coming upon the mortgaged portion, was one which the prior creditor and the officer were bound to respect. The actual release from levy of property-levied upon by virtue of the execution under the prior judgment, and of sufficient value to pay the execution twice over, and the sale of that property which constituted the principal security of the complainant against his repeated remonstrances, and in the face of a repeated tender of the amount due up to the moment of the sale on the execution, so involves the officer who made the sale that he is deemed to have been properly made a party to this suit.
It was urged in the argument that this bill is prematurely-brought as against the purchaser under the Royall execution, and that the complainant should first have proceeded to the sale of that part of the property covered by the mort
It is contended for appellants that, admitting the alleged indebtedness of Eichelberger to Eitch, and that the mortgaged property unsold is not sufficient to pay it, the court cannot disturb the title of L’Engle acquired by the sale of March, 1869, under the Eoyall execution, the judgment and execution not being alleged to be fraudulent, unless the proceedings by the sheriff were illegal; and that under such circumstances, even if, after sale, the judgment should be reversed, the title of an innocent purchaser with-, out notice will not be disturbed. The case made by this bill sets forth that the proceedings by the Sheriff were irregular and illegal, and that the purchaser had notice and conspired with the sheriff in his acts that made them so ; and the doctrine contended for does not apply.
It was suggested in argument that L’Engle and McConnell had no interest in nor control over the Eoyall execution at the time when the levy was made, and not until ten months thereafter; that the bill shows no benefit that could accrue to them or to Eichelberger, from which to presume collusion; that if there was any, it must have been ©n the part of Eoyall or his attorney and the former sheriff who made- the levy, neither of whom is a party to this suit. It is true that the bill complains of the levy, but it also complains of the sale, and of the part that L’Engle & McConnell and Eichelberger took in it; and. as L’Engle & McConnell were the owners of the Eoyall execution at the time of the alleged illegal sale, and one of them became the purchaser of the said mortgaged property under it, the making parties of them reaches the most material facts complained
It is argued that a judgment as soon as entered, and a fi. fa. as soon as delivered to the sheriff, create a lien upon all sthe property of the defendant within the jurisdiction of the court rendering the judgment; that a fi. fa. may be levied upon any property that is subject' to it; that the defendant in execution may have the levy discharged by pointing out «other property sufficient to satisfy the judgment; and that fraud is not shown because the defendant does not see fit to ■do so. It was not so much the levy as the sale that oppressed the complainant; and here the defendant in execution is not charged with fraud upon the plaintiff in execution, but it is charged that while he (the defendant in execution) had abundance of property not subject to the junior lien to satisfy the prior lien, he and the other defendants, knowing this fact, so contrived the sale as to sacrifice most of complainant’s securities, when justice to all did not require it; that the intention and effect of said contrivances were to weaken or destroy the plaintiff’s security, to prevent competition, and to encourage and reward unjust speculation by the defendants at the expense of complainant, greatly to his injury.
It is further argued that if a fi. fa. be levied upon prop «erty subject to a mortgage junior to the judgment, the mortgagee has a remedy provided by law, and should pursue that remedy. He should file his bill of complaint to marshal the «defendant’s assets, and should call in all his prior lien creditors. If he neglects to pursue his proper remedy until after «& sale of the property, it is too late to ask that the sale be ¡set aside, and the title vested in the purchaser disturbed.
This doctrine might be applied if the vendee was not by the allegations in the bill excluded from any present ruling in favor of innocent purchasers.
The authority of the sheriff to change the levy made by
It is argued that if the defendant in execution had forbid the sale and tendered payment, there , would be some force in it, but -that the appellee was in nowise connected with the process, and had no right to instruct the sheriff. That, having neglected to take the necessary steps to restrain the sale, he could only come in as a bidder, and by becoming the purchaser, obtain relief by bill to foreclose his mortgage, praying that the surplus should be substituted for the land and applied to the payment of liis mortgage debt. In Burnett and others vs. Donniston and others, 5 Johns. Ch. R., 35, Chancellor Kent held that where a subsequent judgment or mortgage creditor tenders to a naortgagee the full amount of the debt and interest due on the prior mortgage, with costs, which he refuses to accept, unless another debt due to him from the mortgagor not charged on the premises is also paid, but proceeds' to sell the land under the mortgage, such sale is irregular' and void. Dor can the defendant, W. G. D., (says the Chancellor,) be entitled to protection as a Iona ficle purchaser without notice. It is in proof that the plaintiffs, or one of them, was present at the sale, and in the presence of the defendant, W. G. D., forbade the sale, and
The sheriff had authority to accept the payment tendered by this mortgagee, and had he done so and tendered it to the execution creditors, it was all that they had any right to demand, and they must have been held to be satisfied with it. It was no part of the duty of the sheriff to exercise his authority in such a manner as to-result in needless injury to the existing interests of any person, and no part of the object of the execution to aid any person in impairing that mortgage lien. No person but the sheriff had any lawful • control of the sale. He had authority to discontinue it, and had he returned the writ, “ satisfied by payment by Henry L. Ritch, a mortgagee of the land levied on, in order to save his mortgage lien,” no court would have ever questioned the justice of his act. The refusal to accept the payment afforded no protection to any rights of the defendant in execution 5 it was no right of his to have his property thus sold, nor that of the plaintiff in execution, nor his assigns, whose only right was to have the amount of their judgment debt. The tendency of the refusal and the sale was to impair the mortgage lien, and the bill alleges that to have been the inten-. tion, and that Eichelberger, and L’Engle & McConnell, the assignees'of the execution, and one of them the purchaser. of the mortgaged property, conspired with the sheriff against the complainant to have it done. If this is true, and it is admitted by the demurrer, the bill is full of equity. Nor is the appellee justly subject to the charge of neglect of Ms remedy. ■ He had a right to expect that the sale would be fairly conducted by the sheriff, and that the tracts of land would b.e offered separately by the descriptions by which they had been levied upon and advertised, so that he could bid the full amount of the execution for any one of them, and thus save Ms lien. It was the duty of the sheriff so to offer them, if he sold them. By his acts -the complainant was hedged in by circumstances in nowise essential to jus
It is argued that the sheriff is not competent to decide upon equities between parties hot connected with the process ; and yet, by refusing to accept the payment by one so •■deeply interested in the property, as he must have known the complainant to be, he refused the best possible performance of the duty imposed upon Mm, and did discriminate in favor of one against another-.
It may be true that in the prayer of the bill there are matters of relief prayed which are not warranted by the facts stated, but there are some to which the complainant is entitled. There is also a general prayer for relief.
It is usual to add the general prayer for such relief as the particular circumstances of the case m.ay require ; so that if the complainant mistakes the'relief to which he may be entitled, the court may yet afford him that relief to which he he has a right, and it has been said that a prayer for general relief, without a prayer for particular relief, to which the party thinks himself entitled, is sufficient, and that the particular relief which the case requires may be prayed at the bar. Cooper’s Eq. Pl., 14; 2 Atk., 3. And may amend the prayer for relief in order to pray for other relief, where improper relief has been prayed. Cooper’s Eq. Pl., 333 ; 12 Vesey, 48. This demurrer goes not to any particular thing prayed for, but to the whole prayer for relief; and if the Mil shows a fight to any of 'the relief sought, the demúrrer is not good, though some portions of -the prayer may not be well founded, and may be mere surplusage.
The second ground of demurrer is, that the bill is multifarious. It is true that there is a considerable portion of the
The fourth ground of demurrer, that the complainant has a remedy at law as to Eichelberger, was not insisted on.
The order of the Circuit Court, overruling the demurrer, must he affirmed.