Gassenheimer v. Molton , 80 Ala. 521 ( 1886 )

CLOPTON, J.

Although by our rulings, the estate vests, at law, in the mortgagee freed from the condition annexed to the mortgage, after the law-day and default in performance, an equity of redemption still remains in the mortgagor. While a foreclosure under a power of sale contained in a mortgage as effectually cuts off the equity of redemption, as would a decree in a court of equity, leaving nothing in the mortgagor but a statutory right of redemption, when the mortgagee purchases at his own sale, he arms the mortgagor with an option, if seasonably expressed, to disaffirm the sale, without reference to its fairness, or the adequacy of the price. — Garland v. Watson, 74 Ala. 323. Mrs. Ware expressed her election to disaffirm the sale made in October, 1881, by the mortgagee, at which he himself became the purchaser, by filing her bill, within a few months-thereafter, to have it set aside, and to be permitted to redeem. Until the avoidance of the sale, the equity of redemption may be regarded as in abeyance ; but the decree of the chancellor, rendered in August, 1883, declaring it void, and letting her in to redeem, related back to the time of the sale, and operated to place the equity of redemption in statu quo — to preserve a continuous entirety, unbroken and uninterrupted. On being declared void and vacated, the sale was without effect on the prior and existing equity or interests of the mortgagor. '

The decree was in full force and effect, not having Ijeen superseded,'in October, 1884, when the mortgaged property was sold under the exection in favor of Marshall Molton, and bought by him, and has so continued ever since. But it is contended, that as the law-day of the mortgage had passed, and the mortgagee was in possession at the time of the levy and sale, the equity of redemption was not subject to levy and sale under execution at law, — that under the statute, there can be no valid levy and sale after the law-day unless the mortgagor remains in the actual possession. The statute provides : “executions may be levied on an equity of redemption in either land or personal property. When any interest less than the absolute title is sold the purchaser is subrogated to all the rights of the defendant, and subject to all his disabilities.” Prior to and independent of the statute, the mortgagor’s possessory interest in personal property, when a certain ascertained possession for a definite period, could be sold under execution, and when sold,, carried with it, the equity of redemption. Also when the mortgage conveyed lands, but the right of possession until default or some future definite period was reserved to the mortgagor, he had a valuable legal estate, which was subject to levy and sale under execution, and the purchaser acquired such legal title as will support ejectment. — Hawkins v. May, 12 Ala. 673; Harbinson v. Harrell, 19 Ala. 753; Bernstein v. Humes, 71 Ala. 260. The statute is not merely ■ declaratory of these pre-existing rules. Its evident purpose is to subject to levy and sale a title or claim which would not otherwise be subject. We must therefore, give a field of operation other than when 'the mortgagor is in possession by right of possession. Prior to the statute, when the possession of the mortgagor was merely permissive, either before or after the law-day, he had no such interest as was subject to levy and sale under execution. Only in a court of equity, could judgment creditors redeem, or compel a foreclosure of the mortgage, in order to subject to the payment of their judgments whatever surplus may remain after its satisfaction. The previous statute expressly declared, that the equitable title or claim to land should be liable to the payment of debts by suits in chancery, and not otherwise. To avoid the delay and expense of a suit in equity, the statute interposes, and subjects the equity of redemption to levy and sale under execution, and subrogates the purchaser to all the rights of the mortgagor. — Thompson v. Thornton, 21 Ala. 808; Lovelace v. Webb, 62 Ala. 271. In McConeghy v. McCaw, 31 Ala. 447, it was held, that the interest of the maker of an absolute bill of sale to a slave; but intended as security for a debt, is an equity of redemption, coming within the letter of the statute, and can be sold under execution against him. The holder of the bill of eale was in possession, entitled to the slave’s services for the use of his money. Rut it is said, that the sheriff’s sale was before the law-day. Such fact does not appear in the report of the case, and is not stated, nor is any stress placed on it in the opinion ; and if the fact is conceded, the principle of the decision is, that the equity of redemption may be levied on and sold, notwithstanding the mortgagor is not in possession. The statute uses the general term, the equity of redemption, unqualified by possession or otherwise — -the right of the mortgagor before the law-day, to defeat the passing of the absolute estate to the mortgagee by performance of the condition of defeasance, and the right created by equity after the law-day, to call for a reconveyance by payment of the principal, interest, and costs, if any, without reference to the possession, whether in the mortgagee or mortgagor. Each comes within the letter of the statute, and there can be no sufficient reason, why either should be regarded as without its spirit. Any other construction would render the statute nugatory by leaving no field of operation. We, therefore, hold that Mrs. Ware had an equity of redemption, which could be sold under execution against her, at the time the property was levied on and sold.

The levy having been made on the land, without being limited to the'interest of the mortgagor, it is further contended, that if the equity of redemption is subject to levy and sale, it should have been levied on eo nomine, and that a levy on the land does not operate to.pass to the purchaser the equity of redemption. Such is the ruling in Connecticut, but founded, as it seems, on the construction of statutory provisions. In Maine and Massachusetts it has been held, that the creditor may extend his execution upon the whole estate, and such levy will pass the interest of the debtor, whatever it may be. — Littlefield v. Cudworth, 15 Pick. 23; Brown v. Clifford, 38 Me. 210; Freeman on Ex’ts. § 382. In Lovelace v. Webb, supra, cited and relied on by counsel, the levy was on the land. After refering to the purpose of the statute to benefit the mortgagor and his judgment creditors, it is said : “When the sale is made, however, it is of the equity of redemption, of no other or greater interest, and the statute in words expresses the legal consequence — the purchaser is subrogated to all the rights cmd subject to the disabilities of the mortgagor.” No question arose as to the character of the levy, but the right of the purchaser to redeem from the mortgagee is maintained, which could only have been done on the principle that by the levy, sale and purchase, he acquired the equity of redemption, tinder our statutes the execution creditor has the election to restrict the levy to the equity of redemption, or to levy on the land. If restricted, the purchaser acquires no greater interest, than specially defined in the levy. He is estopped to dispute the validity of the incumbrance ; and if in fact there is no mortgage, though-supposed and believed, there is no equity of redemption, and no interest passes by the levy and sale ; he can not take the entire estate unincumbered. But if he desires to contest the validity of the incumbrance, because it has been removed by payment and satisfaction, or otherwise, or because fraudulent, dr on any other sufficient ground, he may cause his execution to be levied on the -land, and a sale thereunder, will pass whatever interest the defendant may have — the equity of redemption, if there be a valid existing mortgage, the purchaser being subrogated to the rights of the mortgagor. The purchaser acquires all the estate of the defendant in execution, legal or equitable, subject to levy and sale ; the greater includes the less. The statutes were not intended to put the creditor to his election. Whether the sheriff’s deed, purporting to convey “all the legal right, title, and interest and claim” of Mrs. Ware, operates to convey the equity of redemption, is immaterial. Molton, the purchaser, acquired an equity, which being prior in point of time, is superior to the equity of complainant.

It is no't shown, that there was any connection between the purchase of the equity of redemption, and the subsequent arrangement with Mrs. Molton. They are independent of each other. No fraud is alleged or proved. Marshall Molton, having obtained the equity of redemption by a valid purchase, could make such disposition of it as he might deem proper, free from question by the creditors of Mrs. Ware, whose rights were not offended. He could have given it to Mrs. Molton if he chose, or used a part of the proceeds to compromise a claim to the property set up on her part, whether or not well founded, and to induce Mrs. Ware to prosecute her bill to settle the accounts between the mortgagee and herself as mortgagor seeking to redeem. — Micou v. National Bank, 104 U. S. 530.

Affirmed.