Stebbins v. Miller , 94 Mass. 591 ( 1866 )

Foster, J.

The first question arising upon this report is whether the demandant, who was the purchaser at a sheriff’s sale upon execution of Miller’s equity of redemption, was entitled to contest the validity of the second mortgage upon the estate in controversy. The first mortgage was admitted to be an unimpeachable security. The second was disputed on the ground that it represented no genuine debt, and, if it did, was given to hinder, delay and defraud creditors. When a creditor seizes and sells on execution a debtor’s equity in mortgaged real estate, that which he obtains is the entire right of redemption in the premises which the debtor had therein liable to be taken by creditors. There must be a mortgage to justify a sale on execution ; since unincumbered real estate cannot be so sold, but is liable only to be appraised and set off. Therefore it was held in Russell v. Dudley, 3 Met. 147, that in the case of an estate subject to a single mortgage, the purchaser of the equity at a sheriff’s sale was estopped to deny its existence and validity; because he bought only an equity of redemption, and if there were no mortgage there could be no such equity; and by establishing the invalidity of the mortgage he would necessarily establish the invalidity of his own deed and title. Where, however, there are more mortgages than one, so that the debtor’s estate is an equity of redemption, which the statute authorizes to be sold on execution, if any of the apparent incumbrances do not really exist; if they are fraudulent and void, or, though once valid, have been fully paid ; the purchaser is entitled to redeem from the real incumbrances, and to contest such as are apparent only. Gerrish v. Mace, 9 Gray, 235.

We do not find in the language of the officer’s return or of his deed anything.to change this construction and deprive the present demandant of the right to show that the mortgage to Thompson was void as against creditors.

The question whether the paroi evidence was properly admitted of what was said at the sale about the second mortgage, and whether it was announced as a sale subject only to the first becomes immaterial, because, apart from all such evidence, the sale and deed gave the purchaser the right to set aside the second mortgage. But we by no means intend to intimate that the construction of the levy and officer’s deed could be varied or affected by such testimony.

The next position taken in defence is, that the present suit should have been brought within a year after the levy, by virtue of the provisions of Gen. Sts. c. 103, § 48. But in the opinion of the court these provisions apply only to cases where the record title has been absolutely conveyed away in fraud of creditors, and not to facts like the present. The purchaser certainly acquired the right to redeem on some terms; and delay to com menee an action within a year is not made a ground for render ing the terms of redemption more burdensome than they would have been originally.

The homestead right of Miller in the demanded premises is no defence to the present action, either in favor of Thompson, as mortgagee in his lifetime, or of Mrs. Miller in her capacity as devisee of his mortgage interest. That right still continues, for the benefit of Mrs. Miller as widow, and a qualified judgment may be entered in favor of the demandant, establishing his title under the sheriff’s deed and as against the fraudulent mortgage, but subject to the right of homestead. Doyle v. Cobum, 6 Allen, 71. Castle v. Palmer, lb. 401.

The remaining questions relate to the issue submitted to the jury, upon which a verdict has been returned that the Thompson mortgage was fraudulent and void as against his creditors.

Evidence was admissible that in Wales, where he was born and grew up, and where his home continued to be in Miller’s house, Thompson was never known to have any property or means, or to be engaged in any business.

The court properly declined to give the hypothetical instruction that, if the debt was genuine, there was no evidence warranting a verdict for the demandant. A ruling of this nature can be insisted upon, and its refusal made the subject of exception, only where upon the whole case there is no evidence to be submitted to the jury.

Certain particular circumstances in the case were singled out in the last prayer for instructions, as to which the court was requested to instruct the jury that they were consistent with the validity of the mortgage, and not evidence of its fraudulent character. In regard to them the rulings were sufficiently favorable to the tenants. The jury were told, in substance, that these were not of themselves evidence of fraud, and, unless qualified ■ by other evidence, should not prejudice the tenants; but that they might be considered by the jury in connection with all the other evidence in the cause. This direction was plainly right-Upon the trial of almost every issue of fraud, many items of evidence are introduced which, standing detached and alone, would be immaterial, but which in connection with others may tend to illustrate and shed light upon the character of the transaction, to show the position in which the parties stand, and their motives, conduct and relations to each other. All such circumstances are properly submitted to the jury, and inferences are to be drawn from them, not singly, but as a whole.

In the present case, no part of the evidence reported was calculated to mislead the jury, and, taken together, it well warranted their verdict.

Judgment for the demandant on the verdict, but subject to the homestead right.