2 Md. Ch. 322 | New York Court of Chancery | 1849
The agreement submitting this case, presents two questions. The first is, whether a mortgagee, who has recovered judgments at law for his debt, upon one of which an appeal has been taken, and is now pending in the Court of Appeals, the other remaining unsatisfied in the County Court, can maintain a bill in equity for a foreclosure, and sale of the mortgaged premises. And, secondly, whether a mortgagee who has simply instituted a suit at law, but recovered no judgment, is entitled in this court to such a decree.
In 4 Kent, 183, the Chancellor says: “The general rule is, that the mortgagee may exercise all his rights at the same time, and pursue his remedy in equity upon the mortgage, and his remedy at law upon the bond or covenant accompanying it, concurrently.”
The counsel for the defendant supposes that the rule upon this subject in New York, is founded upon the prohibition now existing there, which forbids the sale at law of the mortgagor’s equity of redemption.
But the rule permitting the mortgagee to pursue his remedies at law and in equity, existed prior to the prohibition, which is the creature of the revised statutes, and cannot, therefore, be founded upon it. It is true, as suggested by the commentator, there were, before the statute, difficulties attending the sale of the equity of redemption; but these difficulties did not induce the Court of Chancery to forbid the mortgagee to proceed at the same time at law and in equity; though they subsequently induced the legislature to interdict the sale at law of the mortgagor’s interest.
The argument of the defendant’s solicitor in this case is, that, as the judgment and execution at law will give the creditor all the advantages of a decree, and, indeed, advantages which the decree will not give, there can be no necessity for harassing the defendant with a double suit, and subjecting him to useless costs. It is by no means so clear, however, that the
In the case of the vendor who has proceeded at law against his vendee, and sold the land under a fieri facias, the Court of Appeals have said, the benefit therefrom might not be commensurate with his equitable lien — “that such a seizure and sale could only transfer the interest of the vendee at the date of the judgment, and would be subject to all judgments, liens and outstanding equities existing against the vendee anterior to that time — all such secret and unknown equities would remain unimpaired by such a judicial sale.” Richardson vs. Stillinger, 12 G. & J., 483. It was also remarked by the court in the same case, that, after a sale thus made by the vendor suing and recovering a judgment at law for the purchase money, “he would come with an ill grace into a court of equity, seeking to sell the original entire interest of the vendee in the property, (if indeed he could come at all,) and thereby annihilate the title of a purchaser acquired under a judicial sale, made at his, the vendor’s instance, and for his benefit.”
If, then, it be doubtful, and it is impossible to read the language of the Court of Appeals without entertaining grave doubts upon the subject, whether, after a vendor has recovered judgment at law for the purchase money, and sold the title of the vendee under a fieri facias issued upon it, he can after-wards come into equity, and enforce his equitable lien, it is
It may be, that a distinction exists between the case of a vendor proceeding in equity to enforce his lien, after judgment against, and sale of the sheriff under a fieri facias issued upon it, of the vendee’s interest, and the case of a mortgagee, suing in this court, after having sold the title of the mortgagor, under his judgment at law, recovered upon the bond or covenant; and that, in the latter case, the title of the purchaser from the sheriff might be overthrown, when in the former it would be protected; but no very apparent reason is perceived for such distinction — and Chancellor Kent, in the note already referred to, says, the mortgagee who has sold the title of the mortgagor, by a proceeding at law, cannot maintain an ejectment against the purchaser, unless the latter knew of the existence of the mortgage, and purchased subject to it.
My opinion, therefore, is, that this case comes within the general rule, which permits the mortgagee to sue at law upon the bond or covenant, and in this court upon his mortgage. He may, in the words of the late Chancellor, (Bland,) “sue on all his remedies at the same time,” though, of course, he can have but one satisfaction of his demand. A decree will be passed accordingly.
[The decree in this case was affirmed on appeal.]