Bagley v. Bailey , 16 Me. 151 ( 1839 )

The opinion of the Court was drawn up by

Weston C. J.

Although the deed of mortgage, given by the demandant to Nathaniel Harlow and Mary Parker, was neither acknowledged nor recorded, it was good against the demandant and his heirs. Stat. 1821, c. 36. On the twelfth of Nov. 1831, they were seized of the demanded premises in fee and in mortgage, the equity of redemption remaining in the demandant. On that day, Hazeltine, his judgment creditor, caused his execution to be levied on the equity then existing, and liable to be taken to satisfy the same. The subsequent proceedings, necessary to make the levy available, have reference to that day, and depend upon the state of the title, as it then existed. The demandant would defeat the title under the levy, by showing the mortgage discharged. He proved that on the day of the levy, the debt, for which the premises were pledged, was paid by an extent upon other land. There is nothing in the evidence, by which that extent appears to have been prior to the levy ; and there is no equitable consideration, which requires that it should have precedence by construction. The rights of the creditor are not to be defeated by transactions, to which he was not privy, and which wore not consummated prior to his levy.

The stat. of 1821, c. 60, sec. 1, has made provision, that where mortgaged premises have been attached upon mesne process, and pending the attachment, they are redeemed by the mortgagor, the lien of the creditor shall attach to the fee, and the execution be levied accordingly. This assumes, that the mortgage has been extinguished prior to the levy. How the execution shall bo levied, whether upon the fee, or upon the equity, depends upon the facts, as they exist, when the levy is commenced. If it were otherwise, the debtor might defeat the creditor, by secretly paying the mortgagee on the day of the levy, of which neither would bo legally bound to give notice to the creditor.

It is however insisted, that whatever may have been the state oí things, at the commencement of the levy, the mortgage was extinguished before the actual sale of the equity, and that this course of proceeding was therefore not warranted by law'. In Bullard v. Hinkley, 5 Greenl. 272, the point decided was, that the deed relied upon, as an extinguishment of the mortgage, could not have that effect, not having been delivered, until after the sale of the equity; although it is intimated by the late Chief Justice, that it might have been otherwise, if it had been delivered before. In Freeman & al. v. McGaw & al. 15 Pick. 82, Shaw C. J. was of opinion, that the mode of levying an execution, must depend upon the debtor’s title at the time of the levy. And upon consideration, we are of opinion, that no act of the mortgagee, or of the debtor, can defeat the right of the creditor to sell the equity as such, after he has once seized it on execution.

If the sale of the equity is no longer lawful, if the mortgage is paid at any time before the day of sale, intervening attachments or conveyances may be let in, to the prejudice of the creditor. The day appointed for the sale is often sixty days, and may be more, after judgment. The lien is preserved and extended to the fee, only when the premises are redeemed, pending the attachment on mesne process, and prior to the levy. If payment after the seizure would have the effect contended for, the lien of the creditor might be destroyed by the act of others, and that notwithstanding the utmost vigilance on his part. Nor would a construction, which refers the rights of the creditor to the time of the levy, operate oppressively upon the debtor, if the mortgage is paid prior to the sale. He has a year, within which to redeem his land, if it has been sold for less than its value.

A sale of the equity on the 24th of December, is perfectly consistent with a seizure of the same, under the execution, on the 12th of the preceding November. The officer is to give public notice of the time and place of sale, and also to the debtor, at least thirty days before the time appointed. There is nothing however which forbids his giving notice a much longer period, before the day. It is true, that to preserve the lien, created by the attachment on mesne process, the notice must be given within thirty days after the judgment. From the return of the officer on the execution, this may or may not have been done. If this were a question between an intervening grantee or attaching creditor and the tenant, it might deserve consideration, whether it should not appear affirmatively, that such notice was given ; but we do not hold this to be necessary between the demandant, the debtor, and a purchaser of the equity.

Demandant nonsuit.