Thompson v. Thornton , 21 Ala. 808 ( 1852 )

CHILTON, 0. J.'

— The question involved in this case is, whether the grantor in a deed of trust, who remains in possession of personal property conveyed by the deed to a trustee, after default, and when the trustee has a right to sell so much of the property as shall pay the demands then due, has such an interest as is subject to be levied on by attachment. No question is raised as to the validity of the deed of trust; but conceding that it is valid, the counsel for the plaintiff in error insists, that, as only a portion of the demands secured by the deed was due and unpaid at the time of the levy of the attachment, and the jaroperty conveyed was worth greatly more than the sum thus due, and as the trustee could only dispose of so much as was sufficient to satisfy the sum due, the grantor in the deed was entitled to the possession of the residue, and, consequently, had such an interest as could be levied upon.

It is well settled by the decisions of this court, that the grantor in a deed of trust, or the mortgagor, before the law day or default of payment, in cases where such grantor or mortgagor retains the possession of the property, has such an interest as may be levied on and sold. McGregor & Darling v. Hall, 3 S. & P. 397; 5 ib. 192; 5 Por. 182; 2 Ala. R. 314; 12 ib. 547. But it is equally well settled, that, after the law day or default, such property is not subject to be levied on; for then the mortgagee has the right to enter, or in case of a trust deed, the trustee has the right to the possession of the property, and the right of the grantor or mortgagor is purely the right to redeem; an equitable right, which, being disconnected from the legal right of possession, is not subject to be levied on by legal process. See the cases of Magee v. Carpenter, 4 Ala. 469; Planters’ & Merchants’ Bank v. Willis, 5 ib. 771; Marriots & Hardesty v. Givens, 8 ib. 694; Fontaine v. Beers, 19 ib. 723. These cases are entirely reconcilable with the decisions previously referred to.

The case of Bell v. Pharr & Beck, 7 Ala. 813, is conclusive to show that the amount of the default and the disproportion between it and the value of the property does not affect the right of the trustee to recover, and cannot consequently confer the right upon the grantor to retain the property, or any portion of it, as against the trustee, or of the creditor to levy upon it.

The default goes to the whole property, and it is not for the grantor or any creditor of his to eléct for the trustee which article of property he shall first sell. His right attaches to the whole, and converts the right of the grantor into an equity which is not the subject of levy at law.

The view of the law taken by the Circuit Court, conforms to that we have above expressed.

The judgment must therefore be affirmed.