59 Miss. 608 | Miss. | 1882
delivered the opinion of the court.
Mrs. Jones sold a plantation in Washington County to G. Bowman Wilmot, mostly on a credit, and to secure payment reserved a lien on the land, in the deed executed by her. The debt for the purchase-money maturing and remaining unpaid, she foreclosed her lien by proper proceedings in the Chancery Court, and at the foreclosure sale became the purchaser at a sum far below the amount due her. Wilmot had become indebted to other persons during his ownership of the land, and several of these had reduced their demands to judgments against him. These judgments were junior in date to the equitable mortgage of Mrs. Jones. In the foreclosure proceedings the judgment creditors were not made parties, and they now bring this bill against Wilmot and Mrs. Jones for the purpose of redeeming the mortgage and subjecting the equity of redemption formerly belonging to Wilmot to the payment of their judg
Judgment creditors are usually classed by the text-writers with junior mortgagees and the holders of other subordinate liens as to their right to redeem a prior incumbrance, and it is generally said that, if they are not made parties to the proceedings to foreclose a senior mortgage, their right of redemption is not cut off. A search somewhat patient and prolonged through the American and English reports has brought to light less than a half dozen cases in which this right has actually been asserted by judgment creditors after a sale under a senior mortgage. We decline for the present to commit ourselves to the doctrine, that in this State, where a judgment creditor can at any time subject the equity of redemption of a mortgagor to sale under his judgment, he can stand by without doing so, and after the property has been sold under the prior mortgage compel the purchaser to accept a redemption by himself, except in cases where there has been fraud and collusion in the foreclosure proceedings.
There is high authority for the limitation thus imposed upon the right. In 2 Story Eq. Jur. § 1028, it is said: “ But no person, except a mortgagor, his heirs or privies in estate, has a right to redeem, or to call for an account, unless, indeed, it can be shown that there is collusion, between them and the mortgagee.” In Coote on Mortgages (4th ed.), 1072, it is said: “ It is a general principle that no person shall be entitled to redeem but he who cau show a title to the estate of the mortgagor ; but if there be fraud or collusion to the detriment of third parties, as if assignees, or executors, or trustees refuse to enforce their right, creditors, legatees or other parties interested may bring their action for relief.” This language accords with our own ideas, but is inconsistent with much that is said by other authors, and with much found elsewhere in the works from which these quotations are made. The doctrine usually announced is, that judgment creditors and junior mortgagees
We do not find it necessary, however, in this case, to settle this question authoritatively, and throw out these remarks, rather as suggestive of doubt, than in denial of a proposition asserted by numerous text-writers. We think that the proof shows that there was in this instance an understanding, if not an express agreement between Wilmot and Mrs. Jones, through her husband,* who was her agent, which operated to the detriment of creditors, and probably produced a sacrifice of the property; and this fact supports the bill, and entitles the complainants to the rélief sought.
Mrs. Jones is to be regarded as a mortgagee in possession, and tobe dealt with as such. In taking the account,the agreement between Jones and Wilmot, with regard to the crop of 1879, should be respected and carried out, so as to have the proceeds applied first to the repayment of all advances made by Mrs. Jones during the year, and to the sums.expended in paying off Wilmot’s debts, and the expenses of making the crop. In taking an account of the rents and mesne profits to be charged against Mrs. Jones, proof should be heard both as to the amount of rents received and as to the net profits realized, or which with ordinary good management might have been realized, from the use of the property; and the Chancellor will adopt whichever basis may seem to be demanded by the equities of the case, and with the same view proof as to the rental value should be taken upon the basis indicated in the note appended to the case of Staton v. Bryant, 55 Miss. 261, 277.
Reversed and remanded.
