Moses v. Philadelphia Mortgage & Trust Co. , 131 Ala. 554 ( 1901 )

TYSON, j.

For a statement of the facts of this case, reference is made to the report of it, on former appeal, in 127 Ala. 433.

After a return of the case to the court below the 'complainant amended his bill so as to state the transaction, between the mortgagor and the trustee, such as our opinion stated it in effect to have been — that is, that the possession by the trustee of the eight thousand of bonds was the result of an investment by it of the eight thousand dollars of cash stipulated to be deposited for the payment of the annuity to Mrs. Sloan.

■ After averring the purchase of the eight bonds by the trustee out of the trust funds, the bill as amended seek® a foreclosure of the mortgage, which is past due, and an adjustment of the equities between all the 'parties so as to give the complainant Ms pro rata share of the eight bonds out of the proceeds of the sale of the mortgage property after the other bonds are paid.

The bill, on motion, was dismissed for want of equity and the correctness of that decree is now before us for review.

■ Confessedly if the whole series of bonds (eighty in number) had been sold by the trustee and were outstanding and eight thousand dollars of the proceeds had been invested by the trustee, as it had the right to do, in bonds of the United 'States or bond® other than those issued by the mortgagor, it is clear that the eighty bonds would be secured by the mortgage lien on the property and that it would be subject to sale for their payment, 'subordinate, however, to the annuity to Mrs. Sloan. It is also equally clear, on this state of facts, that if the property should bring enough to pay the bonds in full, the demands and equities of every kind of the 'holders of them would be satisfied and the bonds purchased and held by the trustee to indemnify the holders of the eighty bonds against the Sloan 'annuity, would belong to the mortgagor. Of course if there should be a deficiency, the bonds in the hands of the trustee would have to be applied to its payment as far as necessary. The fact that the trustee invested the eight thousand dollars, which was deposited with it, in eight of the eighty bonds issued by the mortgagor, does not and can not affect the principle. Subject to this right and equity of the holders of the seventy-two bonds, the deposit with the trustee, no matter how invested, belonged to the mortgagor and of course could be assigned, the purchaser taking subject to all equities.

The bill alleges such assignment to complainant and the sole question is, what are his rights as purchaser? If there had been no sale of the equity of redemption of the mortgaged property, that is, if the mortgagor was still in possession of it, and having transferred its residuary interest in the deposit with the trustee to the complainant, it is obvious that, when the holders of che seventy-two bonds are satisfied in any legal manner, as by sale of the mortgaged premises, complainant would he entitled to the deposit or its representative not only as against the bondholders but as against the mortgagor. Then, how can the fact that the mortgagor’s equity of redemption was sold under execution or otherwise, alter the equities of complainant or of the bondholders? Wright, the purchaser of the equity of redemption at execution sale, simply stepped into the shoes of the mortgagor. He holds the real estate subject to all valid liens on it at the date of his purchase. He has no equity to have the Sloan debt paid out of the deposit or to have the deposit first applied or applied at all to the extinguishment of any portion of the debt evidenced by the bonds and secured by the mortgage, so as to reduce the debt against the real estate and thereby increase tlie value of the equity of redemption. In short, a sale of the mortgage property under execution was not a sale of the deposit, and, therefore, the purchaser, Wright, at that sale acquired no interest whatever in the deposit. To repeat, the bondholders have a mortgage lien on the property foir their debt and as a collateral to them, against the Sloan annuity absorbing the property to their detriment, the deposit was made. It can make no possible difference to them, whether they are paid first out of the deposit and second out of the mortgage property. The mortgagor would have the right to direct the order of the application, and it exercised this right when it assigned the deposit to the complainant, which assignment antedated the rendition of the judgment upon which the execution ivas issued under which Wright bought the equity of redemption. By making the assignment to ¡complainant and retaining its equity of redemption in the mortgage property, the mortgagor armed the assignee complainant with the right to insist that the real estate should be first exhausted. Wright, the purchaser of the equity of redemption, after the assignment of the deposit to complainant, cannot stand in 'any better attitude than the last assignee of several notes secured by a common lien, which, of course, is ¡subordinate to the rights of the prior assignee. — White v. King, 53 Ala. 162; Gold Life, etc. v. Hall, 58 Ala. 1. When the mortgagor assigned to complainant its equity to the bonds on deposit with ihe trustee, the complainant succeeded to all the rights of a bondholder subject to the rights and equities pointed out above of the holders of the seventy-two bonds, and, therefore, has the right to have the mortgage foreclosed by a sale of the property conveyed by it to the Bloan annuity and to have his bonds1 paid in full if the property should bring enough to pay the other bondholders and him also. Should, however, the proceeds of sale he not sufficient to pay the seventy-two bonds in full, then of course the complainant would get nothing. But should there he any balance after paying the other bondholders, the complainant will he entitled to it, to the extent of the amount due upon the eight bonds including the interest tbereon, from the date of their assignment to him. The direction that all interest accruing on the bonds after their 'assignment be allowed to complainant is based upon the principle, that it was the duty of Wright, as of the mortgagor, to pay the Sloan annuity as a first lien, as it is lvis duty to continue to do so to preserve the property.

It. is scarcely necessary to say, that Mrs. Sloan, so far as appears from the averments of the bill, was not a party to the agreement resulting in the deposit with the trustee.

In conclusion, it may not be amiss to say that the question here presented is entirely different from the one reviewed on former ajipeal aisi will readily appear from a comparison of the two opinions.

Reversed and remanded.