Parker v. Dacres

Opinion by

Turner, Associate Justice.

This is a suit in equity, brought by the appellant as plaintiff in the lower Court, to redeem property sold under a decree of the District Court foreclosing a mortgage. The complaint alleges in substance, that on the 28th day of December, 1874, and ever since, the appellant was the owner in fee of the property described in the complaint; that on the 2d day of January, 1875, said property was sold by the sheriff at public auction, under and by virtue of the decree of foreclosure ; and that the same in separate lots was bought at said sale by the respective defendants, the complaint describing the particular part or parcel purchased by each defendant; that afterwards, and before the expiration of six months from the confirmation of said sale, the plaintiff, after giving the defendants due and legal notice that he would apply to redeem said property, tendered to the sheriff of Walla Walla County, in his office, during office hours, the amount of money necessary to redeem the same; that the said sheriff refused to receive the money so tendered, or to recognize the right of appellant to redeem said land ; and that the appellant now brings into Court and deposits with the clerk the amount of money so tendered to the sheriff; that the defendants wrongfully and unlawfully, on the 2d day of January, 1875, severally entered upon the premises purchased by them at the mortgage sale, and have ever since and now hold the same ; that by reason of the wrongful refusal to permit appellant to redeem, and the unlawful deprivation of his possession by the defendants, he has been damaged in rents, issues, profits, etc.; that the defendants each hold deeds to the property pur■chased by them at the mortgage sale, made to them by the sheriff of Walla Walla County, which deeds are of record, and are ■fraudulent and void.

The complaint prays that the deeds executed to the defendants by the sheriff be declared null and void; that the sheriff, as a Commissioner of the District Court, be required to make and deliver to plaintiff a good and sufficient deed to said property, and that plaintiff be let into possession of the same ; that plaintiff have and recover damages for the unlawful detention of th possession of the property, and for general relief.

The defendants demurred to the complaint, because:

1. It does not state facts sufficient to constitute a cause of action.

2. Several causes of action have been improperly united in the complaint.

The lower Court sustained the demurrer, and the plaintiff, declining to amend his complaint, brings the cause to this Court by appeal.

The appellant bases his right to redeem the property upon the provisions o( the Civil Practice Act of 1873, Chapter 33, which governed his rights at the time of the mortgage sale; and ■of the offer to redeem.

This chapter is substantially the same as Chapter 34 of the Code of 1881, except that Sec. 379 of the Code is not found in the law of 1873. The exclusion of the right to redeem from mortgage sales is made plain and unmistakable in the Code of 1881, by the addition of the last named section. We think the same conclusion must be reached upon a consideration of the law of 1873, notwithstanding the absence of a provision analogous to that contained in Sec. 379. Chapter 33 of the Act of 1873. deals entirely with executions at law, and the right to redeem, granted by Secs. 364, 365 and 366 of that act, does not in terms, or by fair implication, extend to property sold in any other manner.

The act explicitly defines what an execution shall be. (Secs. 321, 322 and 323.)’

This execution is entirely different from the order of sale issued by the clerk upon a decree of foreclosure. (Sec. 565.)

The conclusion that property sold under the decree of the District Court to satisfy a mortgage is not subject to redemption under the Act of 1873, is enforced by a consideration of the nature of mortgages under our system, and by the effect of our foreclosure proceeding. A mortgage of real property in this Territory does no more than create a lien. In the apt language of a learned author, “ the debt is the principal fact, and the mortgage is wholly incidental or collateral thereto, and intended to secure its payment. The right or interest of the mortgagee, from being a legal estate is changed into an equitable right, enforcable by an equitable proceeding ; it is for all purposes and under all circumstances personal assets ; it may be assigned, and passes to the mortgagee’s personal representatives on his death. * * *

“ The mortgagee’s interest being a mere lien, it is wholly destroyed, and the mortgagor’s estate .is left free and unencumbered by a payment of the debt secured by it at any time before the premises are actually sold under a decree of foreclosure.”' (Pomeroy’s Equity Jurisprudence, Sec. 1188.)

The proceeding to foreclose such a mortgage is entirely different from that to foreclose the equity of redemption, which, to meet the hardships of the common law conception of a mortgage, was a creation of the Courts of Equity. Under our theory of a mortgage, there is no such thing as an equity of redemption in the mortgagor. The legal title has never passed from him. The equity is in the mortgagee, and consists in his right to have the mortgaged property sold to secure the payment of the mortgage debt. This being so, a provision which permitted property sold under a decree of foreclosure to be redeemed from the purchaser by the mortgagor within six months, would diminish the security which the mortgagee has by the terms of the mortgage for the payment of his debt. Property sold free from the right to redeem, would ordinarily bring a better price than property sold subject to the right to redeem. It is not to be supposed that it was the intention of the law to alter the contract which the parties have made for themselves, and to impose an onerous condition upon one of them not provided in the contract. Unless the language of the law is plain and conclusive, when the security is 'ample, no doubt a Court of Equity, by virtue of its inherent equitable power, may impose as a condition of sale the right of the mortgagor to redeem upon proper conditions within a certain time. But in the absence of any such condition in the decree of foreclosure, the sale is absolute.

The decree need not bar the equity of redemption, because there is no such thing. Whether or not it shall affirmatively provide for a redemption, is a matter for the conscience of the Chancellor, upon a view of the-facts of the case.

This view of the law is conclusive of this cause. The demurrer to the complaint was rightfully sustained.

The demurrer was properly sustained upon another ground. The cause of action, if any were in the plaintiff, accrued in the year 1875.

The complaint in this case was not filed until May 15, 1884. The limitation for such an action is that provided by Section 83 of the Code, and is two years. (Hubbell v. Sibley, 50 N. Y. Court of Appeals, 498; Miner v. Beekman et al., 50 N. Y. Court of Appeals, 337.)

The judgment of the Court below is affirmed.

We concur : Roger S. Greene, Chief Justice.

John P. Hoyt, Associate Justice,