Wessel v. Brown ( 1882 )

Cooke, Sp. J.,

delivered the opinion of the court.

The original bill sought to subject an alleged equity of redemption of respondents, N. P. and J. E. Saunders, in a tract of land containing 205-| acres, alleged to have been sold at execution sale, and purchased by respondent, George F. Akers, to the satisfaction of a judgment recovered by complainant against Mrs. C. H. Brown, N. P. and J. E. Saunders, for about $4,600, and upon which execution has been issued and returned nulla bona.

The amended and supplemental bill alleged that since filing the original bill complainant learned that said respondents had redeemed the land from respondent Akers, but had ascertained that the same was encumbered by a deed of trust executed by respondents, Mrs. C. H. Brown and N. P. and J. E. Saunders, to West H. Humphreys, before the recovery of complainant’s judgment, to secure about $2,762 due from said respondents to one B. N. Johnson; that said land was also encumbered by a mortgage executed to J. P. Helm, by said respondents to secure him as their ■ surety upon an appeal bond in an appeal taken by them to the Supreme Court, from a decree of the chancery court rendered against them in favor of one ■ Granberry for about $2,800, which cause was still pending in the Supreme Court, and sought to subject the equitable interests of said N. P. and J. E. Saunders and of Mrs. Brown, if she had any in said land, • subject to said prior encumbrances, to the satisfaction of complainant’s said judgment, etc.

There was a demurrer to the original bill which ■was properly overruled.

The answers both to the original and supplemental and amended bills of the respondents, Mrs. Brown and J. E. and N. P. Saunders, admitted the recovery of complainant’s judgment and return of nulla bona, and the sale of said land under execution and purchase by said Akers, but denied that said Akers had been paid his demand for which said land was sold since the original bill in this cause was filed, and admit the execution of said deed of trust to West H. Hum-phreys for the benefit of Johnson, a copy of which is made an exhibit to the amended bill and filed in this cause, and also the mortgage for the benefit of Helm as alleged.

Said West H. Humphreys was made a party respondent to the amended and supplemental bill, but during the progress of the cause in the chancery court, on the 4th of January, 1879, the cause was dismissed ■as to him upon the rule docket and also as to said Akers, an admission having been entered upon the record that the amount of his bid upon the land had been fully paid off before the amended bill ivas filed.

The chancellor decreed a sale of the interest, either legal or equitable, which said respondents, Mrs Brown and 1ST. P. and J. E. Saunders had in said land, for the satisfaction of complainant’s judgment, interest and costs, subject to said mortgage and deed of trust, and •the respondents have appealed.

It is now insisted, with apparent earnestness, that was error of the chancellor to decree a sale of the interest of the respondents in said land, subject to said prior encumbrances, without having all the parties before the court and their respective interests ascertained, as such a sale, it is now urged, might cause a sacrifice of the property, as the purchaser at such a sale would take an uncertain and unascertained interest.

No such question was made in the court below either by demurrer or answer to the amended bill.

The power of a chancery court to subject an equity in lands to the satisfaction of a debt, subject to prior encumbrances, has been too long and too well settled now to admit of doubt. A mortgage or deed of trust i| but a security for a debt. In equity, the mortgagor or conveyor is held the owner of a beneficial interest in the land, and this right he may sell or convey as any other property. It is not subject to sale by execution under our law — being a purely equitable interest, and therefore is to be reached in a court of equity, either under its inherent powers or-under Code, sec. 4283, et seq., authorizing a judgment creditor to subject property not subject to execution: Weakley v. Cookrell, 2 Tenn. Ch., 320, 321.

We have been referred to no case — we know of none — and think it safe to assume that none can be found, where it has been held that a judgment creditor, with a return of nulla bona (which is not now necessary under the provisions - of our Code), who comes into a court of chancery seeking to subject the equitable interest of a mortgagor on land to the satisfaction of his judgment, subject to the mortgage, has been denied that mode of relief.

It has been often said, and by this court, that the better practice is to bring all the parties in- interest before the court and have their respective rights and equities ascertained, and the entire fee simple of the land sold and the proceeds applied to the satisfaction of the respective demands of the parties, as they are entitled to the same, as this mode prevents multiplicity of law suits, as well as prevents the danger of sacrifice of the property. ' But it is clear, beyond question, that the creditor has a right to adopt either mode he sees proper. And it would be a contradiction in terms as well as an anomaly in equity jurisdiction to say that a party has a choice of remedies, but unless he chooses that one which is deemed preferable by the court, he shall be denied the one which he has chosen.

It is within the power of- the mortgagor to show what prior encumbrances upon the property are, but which the respondents in this ease have not attempted to do, however, and if by failing so to do, their interests are endangered, we have no power, in such a case as the one now under consideration, to prevent it.

There is no error in the decree of the chancellor, and it must be affirmed with costs.