10 Ala. 504 | Ala. | 1846
It is conceded by the defendant’s counsel, that the mortgage to Page was not avoided by the proceedings in bankruptcy, which resulted in the mortgagor’s
Powell, in his Treatise on the Law of Mortgages, 190, lays down the law thus: “If a mortgage be made of an estate to which the mortgagor has not a good title, and then he who has the real title conveys to the mortgagor, or his representatives, with a good title, the mortgagee will be entitled in equity to the benefit of it; for it will be considered there, as a graft into the old stock, and as arising in consideration of the former title.” Again: “if the mortgagor obtain a renewal, or the grant of a fresh term in remainder, without the privity of the mortgagee, such fresh term will be considered as held in trust for the mortgagee. And though the mortgaged lease may be surrendered, or expired by efflux of time, still the fresh term must be assigned to the mortgagee, to hold till the debt is satisfied. [Id. note, (0. 2.) The case cited by the plaintiff’s counsel, from'2 Harris & J. Rep. depends upon the same principle, and maintains that the intervention of insolvency, and the discharge of the mortgagor from his debts in consequence thereof, did not authorize him to hold, divested of the lien of the mortgagee, a paramount title to the premises, which he had afterwards acquired.
At the time the defendant was declared a bankrupt, the mortgage in question, as a security, was unimpaired by any act done, but was operative against him, and he now seeks to defeat it by setting up an interest subsequently acquired by himself, the successful assertion of 'which would be a breach of his warranty. This cannot be done. If it were allowed, the mortgagee might perhaps make it a ground of action, against which the defendant could not set up his certificate ; because it would have accrued after the decree adjudging him a cankrupt. [Owen on Bank, 161 to 165.] It would be strange if the complainant could be defeated in equity, when the ground of defence showed such culpability as subjected the defendant to an action growing out of his neglect of duty.
Although we have considered the case upon the argument of the defendant’s counsel, we are not prepared to admit that the reason why a title acquired by a mortgagor, inures to his mortgagee, depends upon the fact whether the former has warranted the title which he has undertaken to convey to the latter. ^It rests upon higher ground, viz •: that as the mortgagor has, by his deed, impliedly asserted a right to pledge the premises by a conveyance in fee, he shall not be .allowed to insist that he had a less estate, and whatever interest he afterwards acquires, shall vest in the mortgagee to make good the title which he professed to transfer. In this •view, it is immaterial whether the mortgagor’s purchase was made after he was declared a bankrupt or not — he cannot gainsay the title which he professedly conferred^
In considering this case, we have endeavored to forget the moral aspect of the defence, though it cannot be disguised, •that the defendant presents himself in a most ungracious attitude ; and we will no deny that we are better pleased with our decisions, wheil they result in the harmony of municipal with moral justice.
The decree»’of the court of chancery must be reversed, and the cause remanded.
Waiving the consideration of the first point, I prefer resting my concurrence in this case upon the second ground considered, viz: That the implied warranty estops Anderson from setting up a title acquired subsequently to the execution of the mortgage, to defeat his mortgagee, or the complainant who claims by assignment.