ÆäÀÌÁö À̹ÌÁö
PDF
ePub

tion that the mortgagor deliver up possession to the purchaser; but whether it be or be not part of the decree, a court of *equity has competent power to *192 require, by injunction, and enforce by process of execution, delivery of possession; and the power is founded upon the simple elementary principle, that the power of the court to apply the remedy is co-extensive with its jurisdiction over the subject matter." The English practice of opening biddings on a sale of mortgaged premises, under a decree, does not prevail to any great extent in this country. The object is to aid creditors by an increase of the bid; but Lord Eldon condemned the practice, as injurious to the sale; and he observed, that a great many estates were thrown away upon the speculation that there would be an opportunity of purchasing afterwards by opening biddings. The English method of selling under a decree varies greatly from ours, and is favourable to openings of the sale; whereas the sale at public auction, with us, is ordinarily a valid and binding contract, as soon as the hammer is down. The master sells at public auction on due notice, and the purchaser becomes entitled to a deed, unless there be fraud, mistake, or some occurrence, or some special circumstances, affording, as in other cases, a proper ground for equitable relief. In England, the

1 Cox's Cases, 101, Ludlow v. Lansing,

• Dove v. Dove, Dickens, 617. 1 Bro. Ch. Cas. 375. S. C. Kershaw v. Thompson, 4 Johns. Ch. Rep. 609. 1 Hopkins, 231. Garretson v. Cole, 1 Harr. & Johns. 370. This power is confirmed by the New-York Revised Statutes, vol. ii. 191, sec. 152. In Wood v. Mann, 3 Sumner's Rep. 318, it was held that a court of equity may, by attachment, compel a purchaser at a sale by the master, and even his aurety for the payment of the purchase money, to complete the purchase by paying in the purchase money.

Woodhull v. Osborne, 2 Edw. V. Ch. Rep. 614.

• 2 Jacob & Walk. 348.

The mortgagor has no right to redeem after the premises have been sold under a decree, though the purchase by the mortgagee be not consummated by confirmation of the report and the deed delivered. Brown v. Ford, 10

sale has the attributes of a private sale. The master gives notice, and receives bids, and reports the highest bidder; and if his report be confirmed, the title is examined, and the conveyance prepared; and the whole proceeding is in fieri until the final settlement of the title.a

*193

*(6.) Of the reconveyance.

If a mortgage be satisfied without a sale, and the estate is to be restored to the mortgagor, it will depend upon circumstances, whether a reconveyance be

Paige, 246, 1. And in the Bank of the U. S. v. Carroll, 4 B. Monroe, 49, the Court of Appeals, in Kentucky, were so struck with the policy of affording the highest sanction to judicial sales, as to question whether the purchaser's title, he being a purchaser without notice, ought not to prevail even against the right to redeem of a junior mortgagee who was no party to the suit of foreclosure. On the other hand, in Michigan, under a mortgage sale, the mortgagor, or his assigns, may redeem within two years on paying the purchase money and 10 per cent. interest. So, a subsequent mortgagee may redeem and succeed to the right of the prior mortgage. Johnson v. Johnson, Walker's Mich. Ch. Rep. 332.

a White v. Wilson, 14 Vesey, 151. Cunningham v. Williams, 2 Anst. Rep. 344. Williamson v. Dale, 3 Johns. Ch. Rep. 290. Lansing v. M'Pherson, ibid. 424. Bland, Chancellor, in Anderson v. Foulke, 2 Harr. § Gill, 355, 356. In that case the chancellor observed, that biddings were never opened, in Maryland, or the sale suspended, merely to let in another and a higher bid. But if, either before or after ratification of the sale, there be any injurious mistake, misrepresentation, or fraud, the biddings will be opened, and the property again sent into the market. Gorden v. Sims, 2 M'Cord's Ch. Rep. 158. 165; and see the note of the learned reporter in the latter case, page 159, in which the English and American practice on this point is clearly stated, and the inferences justly drawn. The practice in England is not to open biddings after the confirmation of the master's report of a purchaser, except under special circumstances; but it is almost a matter of course when the report has not been absolutely confirmed. The terms vary according to circumstances. The biddings may be opened even in favour of a person present at the sale; but the general rule is against it, and the fact furnishes a very strong objection to the interference of the court.

In Tennessee, the courts of chancery do not open biddings in a sale, under a decree of foreclosure, after confirmation of the master's report, except in cases which would justify setting the sale aside altogether. Henderson v. Lowry, 5 Yerger, 240.

necessary. When the mortgage is made with a condition that the conveyance shall be void on payment at a given day, and the condition be fulfilled, the land returns to the mortgagor, without any reconveyance, and by the simple operation of the condition. But if there had been a default, then, as the estate had become absolute at law, according to the old doctrine, the language of the books has been, that a reconveyance was necessary on discharging the debt. The general understanding, and the practice on this subject in this country, have been different, though the cases are not uniform. This contrariety of opinion, which shows itself here and in England, proceeds from the vibration between law and equity views of the subject. A judge at law, as was observed in Gray v. Jenks, sometimes deals with the mortgage in its most enlarged and liberal character, stripped of its technical habiliments; and a judge in equity sometimes follows out the doctrine of law, and contemplates it with much of its original and ancient strictness. The debt, generally speaking, is considered to be the principal, and the land only the incident; and discharging or forgiving the debt, with the delivery of the security, any time before foreclosure, extinguishes the mortgage; and no reconveyance is necessary to restore the title to the mortgagor. So, an as- *194 signment of the debt by deed, by writing simply, or by parol, is said to draw the land after it as a conse

› Preston on Convey. vol. ii. 200, 201.

* Lord Hardwicke, in Harrison v. Owen, 1 Atk. 520. 1 Sch. & Lef. 176, 177. Judge Trowbridge's Essay on Mortgages, 8 Mass. Rep. 557, 561. 563, appendix.

<3 Mason's Rep. 521.

In the case of the Farmers' Fire Ins. aud Loan Co. v. Edwards, 26 Wendell, 541, it was decided in the N. Y. court of errors, that a tender of a debt secured by mortgage after the day stipulated for payment, removed the lien of the mortgage, as a tender at the day, provided it be made before foreclosure. The mortgagee, if in possession, may, after the tender, be ousted by the mortgagor.

quence, and as being appurtenant to the debt. The one is regarded as the principal, and the other the accessory, and omne principale trahit ad se accessorium. The assignment of the interest of the mortgagee in the land, without an assignment of the debt, is considered to be without meaning or use. This is the general language of the courts of law, as well as of the courts of equity; and the common sense of parties, the spirit of the mortgage contract, and the reason and policy of the thing, would seem to be with doctrine.a In Massachusetts and Maine, the technical rules of the common law are more strictly maintained. The doctrine of Lord Mansfield, in Martin v. Moulin, is not regarded as correct; and, upon the construction of their statute law, the estate of the mortgagee cannot be assigned except by deed; though a bond may be assigned, and pass without deed, and even by delivery. Upon the discharge of the mortgage debt, after a default, a reconveyance is deemed requisite to restore the fee to the mortgagor. This is the doctrine also in Connecticut, Virginia, and Kentucky.b

Lord Hardwicke, in Richards v. Syms, 3 Eq. Cas. Abr. 617. Barnard's Ch. Rep. 90, S. C. Lord Mansfield, in Martin v. Mowlin, 2 Burr. 978, 979. Johnson v. Hart, 3 Johns. Cas. 322. 1 Johns. Rep. 580, S. C. Jackson c. Willard, 4 ibid. 41. Renyan v. Mersereau, 11 ibid. 534. Jackson v. Davis, 18 ibid. 7. Jackson v. Brown, 19 ibid. 325. Wilson v. Troup, 2 Cowen's Rep. 195. Jackson v. Blodget, 5 ibid. 202. Wentz v. Dehaven, 1 Serg. & Rawle, 312. Kinsey, Ch. J., in Den v. Spinning, 1 Halsted's Rep. 471. Morgan v. Davis, 2 Harr. & M'Henry's Rep. 17. Paxon v. Paul, 3 ibid. 399. Story, J., in Hatch v. White, 2 Gall. Rep. 155. Pattison v. Hull, 9 Cowen's Rep. 747. Paine v. French, 4 Ohio Rep. 320. Lessee of Perkins v. Dibble, 10 Ohio Rep. 433. Ellison v. Daniels, 11 N. H. Rep. 274. Entry of satisfaction on the back of a mortgage discharges it. Allard v. Lane, 18 Maine Rep.9. In Pennsylvania it is held, that the assignment of a debt secured by mortgage, is not an instrument within the recording act of 1775 and will, without it, be good against a subsequent assignment; nor is the assignment of a mortgage within the act, and it may be without writing. Craft v. Webster, 4 Rawle, 242.

Judge Trowbridge's Reading on the Law of Mortgage, 8 Mass. Rep. 554, appendix. Warden v. Adams, 15 ibid. 233. Parsons v. Welles, 17

ibid. 419. Prescott v. Ellingwood, 23 Maine Rep. 345. Phelps v. Sage, 2 Day's Rep. 151. Faulkner v. Brockenborough, 4 Randolph, 225. Breckenridge v. Brooks, 2 Marsh. Rep. 337. In Gray v. Jenks, 3 Mason's Rep. 520, a satisfied mortgage, *under the law of the state of Maine, *195 was so far deemed an extinguished title, as that no action would lie upon it by the mortgagee. The irresistible good sense and equity of such a conclusion, were felt, and forcibly expressed, by the learned judge who decided that case; and an intimation to the same effect had been previously given by the chief justice of Maine, in the case of Vose v. Handy, 2 Greenleaf's Rep. 322. It may therefore be presumed, notwithstanding the language of other parts of that case, that the doctrine stated in the text will yield to the more liberal views of the subject implied in the emphatical suggestion of the chief justice. The opinions of Judge Trowbridge are cited with the greatest respect in Massachusetts: and he is considered, and I presume very justly, as the oracle of the old real property law. He criticises, very ably, the opinion of Lord Mansfield; and some of the observations attributed to his lordship, in Martin v. Mowlin, were no doubt very loosely made. Judge Trowbridge insists, that Lord Mansfield confounds the distinction between mortgages of land for a term only, and a mortgage in fee. The former, he says, is but a chattel interest, and the latter an estate of inheritance, descendible as such, and the money due thereon is equitable assets. The supreme court of Massachusetts, in Parsons v. Welles, adhere to these views of the subject. But I would observe, with great submission and respect, that the doctrines of Judge Trowbridge, on mortgages, are far in arrear of the improvements of the age, in this branch of the science; and it will not do to take our doctrines of mortgages from Littleton and Coke. The language of the courts of law is now essentially the same as that in equity; and it is said, again and again, to be an affront to common sense, to hold that the mortgagor, even of a freehold interest, is not the real owner. To show that many of the positions of Judge Trowbridge are not law at this day, it is sufficient to state, that he maintains that the equity of redemption is not liable to be taken in execution; that the mortgage money, on redemption, goes to the heir, and not to the executor of the mortgagee; that a third mortgagee, without notice, may buy in the first mortgage, and secure himself against the second; that the mortgagee in fee has an interest which the creditor may take on execution. The cases of Morgan v. Davis, Paxon v. Paul, Jackson v. Davis, and Jackson v. Blodget, may be selected as cases in which it has been adjudged in the courts of law, that on discharge of the mortgage, after a default, the fee reverts to, and vests in the mortgagor, without any conveyance; and I am persuaded, that most of the courts of law in this country would not now tolerate a claim of title under a mortgage, admitted or shown to have been fully and fairly satisfied by payment of the debt. In New-Hampshire, there is a statute provision, which restores the *land to the mortgagor, by simple payment, or tender, after *196 the condition is broken. Sweet v. Horn, 1 Adams, 332. Though the cancelling of a deed does not revest an estate, which has once passed under it by a transmutation of possession, Hudson's case, Prec. in Ch. 235; yet, if the grantee has voluntarily, and without mistake, destroyed the deed,

« ÀÌÀü°è¼Ó »