3 Mich. 104 | Mich. | 1854
By the Court,
The first question made in this case is, whether Crane & Eolger, the mortgagors, have an interest in the property which was liable to an attachment, and levy and sale upon' execution, and whether the defendant in suing the writ of attachment, had a right to hold the property, in order that such interest might be disposed of.
By a mortgage of chattels, the whole legal title of the property passes to the mortgagee conditionally, and to defeat-such title, the mortgagor, or those claiming under him, must show a performance of the condition. Upon its breach, the title is absolute in the mortgagee, as the general owner, and cannot be questioned in a Court of law. (Story on Bail. § 287; 2 Hill, on Mort. 315, 344; Butler vs. Miller, 1 Denio, 407; Sumner vs. Batchelder, 30 Maine, 39; Thornhill vs. Gilmer, 4 Sm. and M. 153; Brown vs. Bennet, 8 J. R. 98; 1 Barb. S. C. 548; 9 Wend. 83, 84; 7 Cow. 292; Wood vs. Dudley, 8 Vt. R. 435; Gifford vs. Ford, 5 Id. 532; Melody vs. Chandler, 3 Fairf. 282; Flanders vs. Barstow, 18 Maine, 357; Badlam vs. Tucker, 1 Pick. 389; Pickard vs. Low, 15 Maine, 48; Howlahd vs. Willett, 3 Sand. S. C. R. 607; Spriggs vs. Camp, 2 Speers, 181; Burdick vs. McVanner, 2 Denio, 170; Charter vs. Stevens, 3 Id. 33; Bank of Rochester vs. Jones, 4 Comst. 498; Alden vs. Lincoln, 13 Metc. 204; Hall vs. Snowhill, 2 Greene, N. J. S.)
And- whether at common law, such mortgagor has an equity of redemption, or whether Courts of Equity will interfere, and allow a redemption, where there is no statutory provision relating to redemption, is not definitely settled, although the latter .opinion seems to be that equity will interfere to prevent gross injustice. (1 Pars. on Cont. 452; 2 Hill. on Mort. 314; 2 Story Eq. Juris. § 1031; Brown vs. Lips
It is a singular fact that very much of the law determining the rights of parties to chattel mortgages, has been settled in adjudications between mortgagees and the ministerial officers of the law, who have attempted to make the title of the mortgagor subservient to the claims of his creditors. When the condition of the mortgage has become broken, and the title in the mortgagee becomes absolute, his right to reduce the property to possession, and to hold it against all the world, as a principle of common law is beyond question. That he cannot be disturbed in that possession, except through the intervention of the Courts of Equity, is equally clear. In the case at bar it is found that the condition of the mortgage was to indemnify the plaintiffs against the consequences of their endorsement of a note for the accommodation of the mortgagors; that the note was dishonored and then taken up by the plaintiffs, who immediately afterwards took possession of the property mortgaged, and held it under such possession until it was seized by the defendant, by virtue of a writ of attachment issued by a Justice of the Peace some sixteen days after such acquisition of the possession by the plaintiffs, upon a debt claimed to be due to one Henry Barns from the mortgagors. The defendant attached the right and title of said mortgagors, but seized the property and retained it from-the possession of the plaintiffs, to satisfy any judgment which, might be rendered in their attachment suit.
It is contended by the defendant’s counsel that this light of seizure and possession is given to the defendant by the provisions of the Revised Statutes. By the provisions of chap. 93, § 26, the officer serving a writ of attachment is
At the most, then, a right to seize and sell the interest of a mortgagor only exists, when he is entitled to the possession
We have already shown that the mortgagor after condition broken, has nothing left, unless it may be an equity of redemption, which is not a legal interest, and is not the subject -of levy and sale. The statute was not designed to create -rights, and subject them to seizure, but only to extend the remedy by execution over rights in existence. Such is the only construction which can be placed upon it consistent with law and the rights of parties. The language of the section relates to' goods pledged by way of mortgage or otherwise, authorizes a sale of the pledgor’s interest, and confers upon -the purchaser at such sale all the rights and interest of the pledgor, and entitles him to possession only upon complying with the terms and conditions of the pledge. Now although it is said “ a mortgage is a pledge, and more — it is an absolute pledge to become an absolute interest, if not redeemed at a certain time,” yet there is a broader distinction than this between them, for a mortgage passes the legal title, subject to
In the view of equity, a mortgage may be regarded as a pledge and something more,” and hence the jurisdiction courts of equity assume in relation to its redemption — but the law regards it rather as a grant or sale of the property, by which, unlike a pledge, a title passes, which becomes absolute upon breach of condition, without the intervention of any legal proceedings, or a decree of a court of equity. Now a mortgagor, unless he have a right of possession, has no legal title or interest in the property mortgaged. He has nothing which can be seized or sold, and by performance of the condition of the mortgage, he acquires a title and right of possession; of both which he was divested up to that period. What rights, then, at all analogous to those of a pledgor, has •a mortgagor, which are legally tangible and subject to seizure and sale ? The words “ by way of mortgage,” in § 23, therefore, can only relate to the right of possession, if any, which exists in the mortgagor, upon which right the property may be seized before condition broken, and the mortgagor’s interest therein sold, and along with which the right to.redeem is carried, according to the rule of Bailey vs. Burton. This construction of the statute harmonizes it with the common law, accords with the decisions of other States, and preserves the rights of the parties — while any other will impair the rights of parties, be utterly unavailing for the purposes contemplated, and as we shall presently see, be absolutely impracticable in execution. We are referred to § 32, as prescribing the manner in which this power must be executed.
We have heretofore treated this question as though the interest of a mortgagor, if subject to sale upon execution, would be liable to seizure upon attachment. It is clear that such liability could only exist, if at all,- when the possession of the mortgagor is by agreement with the mortgagee, and before condition broken. It is not so clear, however, that such interest of the mortgagor is liable to attachment in any event. The remedy by attachment is a special remedy, unknown to the common law. No rights or powers are to be acquired by implication. The goods and chattels of the defendant not exempt from execution are subject to seizure under the writ. The interest of a mortgagor is neither- goods or chattels subject to seizure at the common law — it is an equity of redemption intangible, and incapable of delivery. What we have already said respecting the nature of the rights of a mortgagee and the inability of an officer to divest him of his possession,
In Lyon vs. Coburn, 1 Cush. 278, the question was, wheth- ' er under the Statutes of Massachusetts the interest of a mortgagor, which might be seized in attachment, in which case ample provisions were made to protect the mortgagee’s rights,- could be seized upon execution in the first instance, and the Courts held that it could not, as the language of the statute was appropriate to an attachment upon mesne process, but not to a seizure or taking upon execution. So in Snyder vs. Hilt, 2 Dana, 204, it was held that the interest of a mortgagor was not liable to be sold under a distress for rent. The Court say: “an equity of redemption was not
In looking through the reports of all the States, it will be. found that statutes respecting the sale of a mortgagor’s interests, have received a most strict construction, and no right not clearly within their letter .has been built upon them.
The judgment of the Court below must, therefore, be affirmed with costs to the plaintiffs.