Wilson v. Shoenberger's Executors ( 1859 )

The opinion of the court was delivered by

Woodward, J.

When this case was here last year, the deed of E. F. Shoenberger to General Wilson of 14th May 1849, was adjudged a mortgage: 7 Casey 295.

The case is here now as an action of ejectment against a mortgagee in possession. It is likened to a bill in equity to redeem, and it is insisted that a chancellor would not allow the mortgagor to redeem until he had accounted with his mortgagee and repaid his advances.

The answer is, that the plaintiff is not the mortgagor, but a purchaser at sheriff’s sale made on a judgment whose lien attached to the premises prior to that of the mortgage. Dr. Peter Shoenberger, whose executors are .plaintiffs, purchased under a judgment entered on the 2d or 7th of February 1850. Both dates are given in the appendix to the paper-books, but it is not material which is right nor which wrong, for both are prior to the recording of the mortgage. Indeed, the mortgage has never been recorded at all. The part of it which conveyed the estate to Wilson was put on record the 12th February 1850, more than six months after its date, and five days at least subsequent to Dr. Shoenberger’s judgment under which he purchased; but the accompanying defeasance which Wilson gave to E. F. Shoenberger not having been recorded, it is the case of an unrecorded mortgage: 17 S. & R. 70.

The proposition of the defendant is, therefore, that he, as the holder of an unrecorded mortgage which never became a lien upon the premises, has a right to retain them as against the purchaser at sheriff’s sale, until he is repaid the mortgage-debt.

To sustain such a proposition would be to repeal our recording acts and to nullify the effect of judgment liens. Be it so, that • equity would not turn out a mortgagee and admit a mortgagor until the mortgage-debt was paid, these plaintiffs are not here as mortgagors, but as purchasers under a lien paramount the mortgage. They acquired all the rights both of mortgagor and mortgagee in the land, and to insist that they shall account, is to insist that they shall account with themselves. On them the mortgagee has no claims in law or equity.

But against Edwin F. Shoenberger he would have equities, and it is said that the executors in this suit represent him as one of the devisees under his father’s will. It would seem from the will of Dr. Shoenberger, that' this land fell into the residuary part of his estate, the whole of which was devised to his executors, to be sold, the proceeds of one-seventh thereof to be held by the executors in trust for the children of E. P. Shoenberger, and the interest of that seventh to be paid to him’ for life, “ in such way and manner,” however, “as not to be liable to any of the debts of said Edwin P. Shoenberger.”

This gave the estate in the land to the executors, and vested only a qualified personalty in E. P. Shoenberger: Selfridge’s Appeal, 9 W. $ S. 56. And his interest, such as it was, sprung, not from this land specifically, but from the whole residuary mass, which included, together with this land, much other valuable estate.

Under the circumstances of the case, he cannot be regarded as a substantial party to this suit; and if he could, the equities which the defendant proposes to adjust would involve a settlement of the whole estate of Dr. Shoenberger, which would be a sufficient reason for disallowing them when presented in this form.

We see no ground in the bills of exception to evidence, or in the charge of the court, for reversing the judgment, and it is accordingly affirmed.