Trenholm v. Wilson, CASE No. 826

Read

Notebook

CASE No. 826 | S.C. | Mar 12, 1880

Lead Opinion

The opinion of the court was delivered by

Willard, C. J.

This was an application by a purchaser at a sale under a decree for foreclosure to be let into possession, and was resisted by the tenant in possession.

The mortgagor died after decree of foreclosure, and his widow has retained possession of the mortgaged premises since his death. The widow claims that she is entitled to dower in the premises and that she cannot be ousted until her dower is assigned-. She also objects that there has been no revival of the suit since the decree, and for that reason the sale was invalid and the purchaser not entitled to be let into possession. The Circuit judge refused the motion and the purchaser appeals.

The decree of-foreclosure, rendered during the lifetime of the mortgagor, binds all parties to the suit and all others who have,, "acquired an interest in the mortgaged lands since the notice of lis pendens. The widow claims the title in herself. Her possession of the mortgaged premises appears to have been obtained since decree and by the death of her husband. So far as the execution of the decree involved only the sale of the mortgaged premises, it was capable of being enforced after the death of the mortgagor, and without reviver, being in the nature of a proceeding in rem. Hays v. Thomas, 56 N. Y. 521; Harrison v. Simons, 3 Edw. Ch. 394.

A question has been made as to the effect of the death of the mortgagor upon the capacity of the decree for enforcement, without reviver, in view of the fact claimed that by the terms of the decree the equity of redemption is not barred until actual sale of' the mortgaged premises under it. Assuming this to be the proper construction of the decree, the only effect would be that the persons entitled to take the mortgaged lands at the death of the-*177mortgagor would be entitled to redeem at any time prior to the-actual sale. It is not alleged that any such right of redemption has been exercised or asserted by the parties who succeeded the mortgagor, as it regards the land in suit, nor do such parties-, resist the appellant’s motion to be let into possession as detrimental to such right of redemption. It is not, therefore, neces^ sary to consider the effect of the sale upon the rights of parties occupying that position. The widow of the mortgagor, the only party resisting the appellant, does not assert the possession of an equity of redemption. If she had released her dower to the mortgagee she would be entitled to an equity of redemption. 2 Jones on Mort., § 1067. Her position is, that she is entitled to dower as against the mortgage. Her rights, as claimed, not being subject to the mortgage, she is not compelled to prosecute them through a mere equity of redemption. As to her, the question of the effect of the outstanding right of redemption upon the validity of the sale has no relevancy.

But the question whether the equities of redemption of certain parties remain unbarred, concerns the operation of the decree for a purpose entirely distinct and different from that of giving efficacy to the sale. A sale for foreclosure may be valid and yet subject to unextinguished equities of redemption. The only question here is, was the decree authority for a sale ? It is clear upon reason and the authorities that it was.

Assuming the right of the respondent to dower, still she was a mere trespasser on the land of her husband after the expiration of her quarantine. McCully v. Smith, 2 Bail. 103; Lamar v. Scott, 4 Rich. 516. She could not retain the land as against the heirs of her husband until the admeasurement of her dower, much less as against the alienee of her husband. The appellant having title under the husband’s mortgage occupies the place of his alienee.

The refusal of the Circuit judge to grant the motion of the appellant was erroneous, and the order dismissing the petition must be set aside and the case remanded for an order conformable to the prayer of the petitioner.

Concurrence Opinion

McGowan, A. J.

I concur. The widow’s possession came through her husband, and she is as much bound by the decree as he would be. This does not touch the question of her dower.

Dissenting Opinion

McIvee, A. J.

I dissent. According to my view, a purchaser at a judicial sale of land cannot resort to the summary proceeding by rule to eject any persons whom he may find in possession, unless such persons are parties to the action under which the land was sold, or their privies; and, as in this case, it does not appear that Mrs. Wilson was either a party or privy to the action, I think the Circuit judge was right in discharging the rule, and that his order should be affirmed.

Motion granted.