Mansony v. United States Bank

4 Ala. 735

• Court: Supreme Court of Alabama
• Decided: January 15, 1843
• Status: Published

Opinion

COLLIER, C. J.

We do not consider it necessary to a decision of this cause to examine all the interesting questions discussed at the bar; and shall content ourselves with inquiring, 1. Did not the mortgage by Mr. Hitchcock and wife, executed in 1838, and the failure of the former to pay the debt, (intended to be secured,) as stipulated, entitle the mortgagees to recover of the plaintiffs in error, as his tenants, the rent becoming due after the forfeiture of the mortgage ? 2. Was the execution issued on the judgment in favor of McGehee, use, &c., so far void, that a levy on and sale of property thereunder, would not invest the purchaser with a title ? 3. Is the order of the Chancellor directing an attachment to issue against Messrs. Mansony and Hurtell, such a sentence or decree as may be revised on error ?

1. Where a mortgage is drawn in usual form, without any stipulation, expressed or implied, as to the possession, or the repts accruing previous to the forfeiture, the legal estate vests ttnptediately in the mortgagee, who may maintain an ejectment against the mortgagor. But if it is provided by the mortgage, that the mortgagor shall retain the possession until c(y.faul,t is made in the payment of the debt, or interest, then the mortgagee cannot sue at law until after forfeiture is, incurred. [See, Doe ex dem Duval’s heirs v. McLoskey, 1 Ala Rep. N. S. 729, and cases there cited; also, 1 Lomax Dig. 327.] In the case cited, the Court say, “The creditor who takes a, mortgage tQ secure a debt by bond or otherwise, has three remedies, either of which he is at liberty to pursue, and all of •Which it is said, he may pursue, until his debt is satisfied. He, may bring an action at law on the bond; or he may put himself ip possession of the rents and profits of the land mortgaged, by means of an ejectment ox trespass to try titles; or he may fqreolose the equity of redemption, and sell the land to satisfy fhe .debt.” Again ; “ the general current of authority maintains the right of the, mortgagee to enter at any time upon the, [and mortgaged, or bring an action for the recovery of the possession, unless it appears by express stipulation, or necessary implication, that the parties understood that the mortgagor should remain in possession.” In the present case it is entirely immaterial what were the stipulations of the mortgage,, in respect to the possession of the mortgaged premises previous to the motgagox’s default; for it is shown by the record, that t.he mortgagor failed to p.ay the first instalment of the debt, and. that a bill for a foreclosure was filed previous, to his death. The inference, from these facts is, that the legal title had vested in t,he mortgagee, and it was competent for him to have, sued at law. for the recovery of the possession. [Keech v. Hall, Doug. Rep. 21.]

The statute of 4 Anne Ch. 16,, haying dispensed with the. at-tornment of tenants to the grantees of rents and reversions., it; has, been held in England that the mortgagee of laud,, which a,t the, time of mortgage, was under a demise to a tenant,, may in case of non-payment of the interest, give notice of the, mortgage to the tenant in. possession, and recover the rent in, arrear at the time of the notice, as well as what afterwards accrues, [1 Lomax’s Dig. 330; see also Chambers et al v. Mauldin et al, at. the. la;st term, and easps there cited. Moss v. Gallimore, Doug Rep. 266, is a leading case to this point. There it appears that one Harrison being seized in fee of certain premises^ oil the 1st of January 1772, demised them to the plaintiff for twenty years, at a rent of .-640, payable yearly on the 12th of May; and in May of that year, he mortgaged the same premises to the defendant, Mrs. Gallimore in fee. The plaintiff continued in possession, and paid the rent regularly to the mortgagor, with the exception of Ü28, which was due ori or before November, 1778, when the latter became á bankrupt, being then indebted to the mortgagee more than that sum, for interest on the mortgage. On the third of January, 1779, the agent of the mortgagee showed the plaintiff the mortgage, and demanded the rent .then remaining unpaid. To this demand the plaintiff replied that the assignees of the mortgagor had demanded the rent on the 31st December preceding; but the agent Saying that the mortgagee would distrain if-the rent W&S. not paid, the tenant said he had some cattle to sell, and hoped she would not distrain till they were sold, when he would pay it. The plaintiff not having paid according to his contract, filé other defendant, by order of Mrs. Gallimore, entered ahd dis-trained for the rent, and gave a written notice of the distress td the plaintiff. The cattle and goods distrained Were according* ly sold; and the question was, whether, undef all the cir'ctliii* .Stances, the distress could be justified. It was insisted for the plaintiff that the defendant Gallimore, not being, at t'he time when the rent distrained for became due, in thé actual seizin Of the premises, nor in the receipt of the rents and profits, Sh'é had no right to distrain. Lord Mansfield said, “ Of late years the Court's have gone so far as to permit the mortgagee to pro* ceed by ejectment, if he has given notice to the tenant that hé does not intend to disturb his possession, but only requires the rent to be paid to him, and not the mortgagor. This hoWevef is entangled with difficulties. The question here is, whether the mortgagee was or was not entitled to- the rent in arrefir. Before the statute of Queen Anne, attornment Was necessary, on the principle of notice to the tenant; but when it took plaóé it certainly had relation back to the grant, and like other relfi* five acts they were to be taken together. Since the statute tfi-é conveyance is complete without attornment, but there is a pro* vision that the tenant shall not be prejudiced for any act dohé by him, as holding under the grantor, till he has had notice of the deed. Therefore the payment of rent before such notice is good. With this protection he is to be considered by force of the statute, as having attorned at the time of the execution of the grant; and here the tenant has suffered no injury. No rent has been demanded which was paid before he knew of the mortgage. Pie had the rent in question still in his hands, and was bound to pay it according to the legal title.” Again: “The mortgagor receives the rent by a tacit agreement with the mortgagee, but the mortgagee may put an end to this agreement whep he pleases. He has the legal title to the rent, and the tenant in the present case cannot be damnified, for the mortgagor can never oblige him to pay over again, the rent which has been levied by this distiess. I therefore think the distress well justified; and I consider this remedy as a proper additional advantage to mortgagees, to prevent collusion between the tenant and the mortgagor.” The opinions of the entire bench were in harmony with these views. [See also, Doe ex dem Marriott v. Edwards, 5 B. and Adol. Rep. 1065 ; Pope v. Biggs, 9 B. and C. Rep. 245; Waddilove v. Barnett, 4 Dowl. P. Rep. 348; Vallance v. Savage, 7 Bingh. Rep. 595; ill which it is considered as perfectly clear and settled, that a mortgage operates as a transfer in law of all leases of the mortgaged premises, which the mortgagor has made; and that the mortgagee, upon giving notice to the tenants may recover rent. In fact these cases maintain, that where a mortgagor continuing in possession, demises the premises for a term of years, the mortgagee may treat the mortgagor as his agept in making the lease, and demand of the lessee the rent unpaid, upon giving him notice of the mortgage.

The law in this State is precisely the same as it is in England, so far as it respects the right of the mortgagee to 'recover rent of the tenants of the mortgagor. We have a statute which modifies the common law to the same extent as does that of 4 Anne. It is in these words: “Every grant or conveyance of messuages, lands, tenements, and hereditaments, shall be good and effectual without attornment of the tenant; but no tenant who before notice of such grant or conveyance, shall have paid the rent to the grantor, shall be prejudiced, or suffer any darm age by such payment.” [Aik. Dig. 93.j

In the present case, however, it appears that the plaintiffs in error admitted in writing that they were the tenants of the mortgagees, (Messrs. Cowperthwaite, &c.) and undertook to pay them rent, when by an application of the rents, or otberr wise; a debt for which they were pledged was satisfied. It is true that they subsequently acknowledged the title of James Erwin, surrendered to him their lease and accepted from him another,by which they agreed topay him rent. There is nothing in the record to show that in all this the plaintiffs in error have not acted with entire good faith; merely acknowledging the title of the one party or the other as they thought it best, without any advantage to themselves. And even if the complainants have acquired no title in virtue of the deeds executed by Mrs. Hitchcock and James Erwin, yet the mortgage it must be conceded is prima facie, valid; and from the showing made, authorized the appointment of a receiver of the rents of the property in question,until it should be ascertained by the Court, who had the paramount right to them. This was a step important to the complainants if it should appear that their title is superior to the defendants’; otherwise, after having obtained the decree they seek, they might be compelled, in order to recover the rent, to prosecute another suit against James E.

The appointment of a receiver being regular, it was clearly competent for the Court, to direct the tenants to pay the rent to him, and if they refused to attorn, to follow up that order by the issuance of such compulsory process as was necessary to make it effectual. The order for an attachment against the plaintiffs in error would have effected nothing more; and was consequently proper.

2. A judgment in this State is a lien upon the lands of the debtor within the same, in virtue of the statute which authorizes their extension under the writ of elegit. [Morris v. Ellis, 3 Ala. Rep. 560; Campbell, use, &c. v. Spence et al, at this term; see also Winston & Fenwick v. Rives, 4 Stew and P. Rep. 280; Pope v. Brandon et al, 2 Stew. Rep. 401; Ridgely’s Ex’rs v. Gartrel, 3 H. and McH. Rep. 449; Calhoun v. Snyder, 6 Binn. Rep. 135; Stow v. Tifft, 15 Johns. Rep. 464; Roads v. Symm et al, 1 Ohio Rep. 281; Bank U. S. v. Tyler, 4 Pet. Rep. 366; Uuited States v. Morrison, id. 124; Rankin v. Scott, 12 Wheat. Rep. 177; Woodcock v. Bennet, 1 Cow. ; Bank U. S. v. Winston’s Ex’rs. et al, 2 Brockb. Rep. 252 ; Stymets v. Brooks, 10 Wend. Rep. 211-12 ] But the plaintiff, in order to make his lien available is not obliged to extend the lands of the defendant; if he chooses he may-have them levied on and sold under a fieri facias- [Morris v. Ellis ut supra ]

Assuming in the preseut case, that Mr. Hitchcock’s title to the property in question, was such as the judgment recovered by McGehee could reach, the questiou is, has its lien been defeated or delayed by any subsequent act or occurrence ? It has been repeatedly decided by this Court, that where a defendant sues out a writ of error, and supersedes the execution by entering into bond with surety, or obtains an injunction, the lien of the execution is entirely destroyed. [Barnes v. Baker & Sledge, Minor’s Rep. 373; McRae and Augustin v. McLean, use, &c. 3 Porter’s Rep. 145, 153; Wiswall v. Monroe, at the last term; Campbell, use, &c. v. Spence et al, at this term.] And in Winston and Fenwick v. Rives, [4 Stew.and P. 280,] the Court say they think it clear, that the lien of a fi fa. on personal property, or of a judgment on lands, is discharged by a bond for a writ of error, or by an injunction.

In the Bank of the United States v. Winston’s Ex’rs. et al. [2 Brockb. Rep. 252,] Chief Justice Marshall says, “As the lien created by a judgment is given by the statute which authorizes an elegit, it is settled in this country that the lien depends upon the right to sue out an elegit..” [See also 2 Call’s Rep. 125; 4 H. & Munf. Rep. 57.] Again: continues the learned Judge, “In the case of Scriba v. Deanes, ante. vol. 1, page 170, this Court determined tha-t the lien of a judgment on which execution is stayed, dates not from the time of its rendition, but from the time when execution may be sued out. I have not changed this opinion.” To the same effect are the cases of Jackson v. Bartlett, 13 Johns. Rep. 533; Conrad v. The Atlantic Insurance Company, 1 Peter’s Rep. 443; United States v. Morrison, 4 Peter’s Rep. 124; Burton v. Smith et al. 13 Peter’s Rep.— And this Court in Campbell use &c. v. Spence et al. ut supra, determine that a bona fide purchaser, under a fieri facias upon a junior judgment, would be protected. In the language of the Court, in the case of Den v. Hill, [1 Haywood, 72,] “ were the law not so, it would be the most dangerous thing in the world to purchase land at an execution sale. Dormant judgments might be revived a long time afterwards, and the innocent ven-dee evicted without the possibility of ever regaining the purchase money.” In such case, the lien of the elder judgment would be lost by the laches of the plaintiff.”

By the common law, all proceedings in a suit at law are stopped by the death of one of the parties. If either die before judgment, no judgment can be entered: if after judgment, no execution can issue. To avoid the inconvenience resulting from this principle, the judgment is made to relate back to a day previous to its rendition, or the execution to bear teste of the term when the judgment is supposed to have been rendered. [Hildreth v. Thompson, 16 Mass. Rep. 192; Stymets v. Brooks, 10 Wend. Rep. 211-12.] In the latter case, it is said, “After the death of a defendant,-no execution can issue against his personal representatives, heirs, or terre-tenants, without a scire facias. [2 Saund. Rep. 6, n. 0, 72, a. Bacon tit. Execution 731, pl. 14 note; 2 Tidd, 1029; 2 Arch. prac. 88.] The reasons given are, that a new party is affected by the execution, and there would be a discrepancy between it and the record, and indeed there is no authority for the process. A. scire facias, therefore, is necessary not only to make these new parties parties to the record, but to give them a day in Court to shew cause, if any, against the application of the property to the discharge of the judgment.” It is further maintained by the Court, that the English doctrine of the relation of an execution to the day of its teste, so as to operate a lien upon the goods of the defendant from that time, is applicable alone to the writ of fieri facias which issued against the goods and chattels of the defendant. [See also 2 Saund Rep. 6, n. 1, 2 Lord Raym. Rep. 849; 1 Archb. Prac. 282; 2 id. 88; 2 Tidd. Prac. 915; 1 Saund. Rep. 219, e. f.]

In respect to the relation of a judgment to the first day of the term, when it was rendered, this Court decided that it was a mere legal fiction, which would never be allowed to defeat the purposes of justice; and that a judgment became a lien upon, the defendants lands from the time of its rendition, and not sooner. [Pope v. Brandon et al., 2 Stewt. Rep. 408.]

It has been expressly adjudged, that an execution which, directs money to be made of the lands and tenements of a deien-dant who is dead, is irregular and void [Woodcock v. Bennet, 1 Cow. Rep. 740; Stymets v. Brooks, 10 Wend. Rep. 212; Morton v. terre-tenants of Croghan, 20 Johns. Rep. 106.] The mandate of such a writ cannot be executed; for the reason, that by the death of the defendant previous to its issuance, all the real estate of which he was possessed ceased to be his, and eo instanti vested in his heirs, who cannot be divested of it Without an opportunity of being heard. Being void, the execution is regarded (it is said) as a nullity from the beginning, so that a purchaser under it acquires no title as against heirs' or devisees. [1 Cow. Rep. 734-5-6.] And its invalidity may be shown to the Court by extrinsic proof.

In Collingsworth v. Horn, [4 Stewt. & P. Rep. 237,] it was considered, that the issuance of an original fieri facias against the property of a defendant, after his death, might be irregular, but where an original issued in his lifetime, an alias or pluries issued thereafter would not be void, and might be sustained as a continuation of the first execution, and to keep alive the lien which it created upon the personalty. [See also Doe ex dem. Price v. Lucas at this term.] But it has been held that there is a distinction between the real and personal estate in this respect That it is the judgment, not the execution, which gives the lien upon the former; and while the execution is permitted to continue as to the personalty, the judgment does not survive as to the realty. [1 Cow. Rep. 740 1.]

We have very cautiously stated the law on this point, as we find it laid down in the book. Our conclusion upon the first question considered, relieves us from the necessity of making any definitive decision of the second, although it has been elaborately discussed at the bar. Our impression is very strong, that the lien of McGehee’s judgment was suspended by the injunction obtained by Mr. Hitchcock and continued after his death; and the execution subsequently issued was irregular, and did not authorize the levy on, and sale of the lands of which he died possessed. In fact, the first branch of this proposition may be regarded as settled by our own decisions; the latter, as it may perhaps be desirable, we are willing to leave open to be again examined when it shall arise.

3. The order for an attachment against the plaintiffs in error, is not a final decree in the cause, but is intended to provide for the security of the rents of a portion of the property in controversy, until it shall be determined whether the eomplaii ants are entitled to them. In this view of the question, and which seems to us to be strictly correct, we think it clear, that a writ of error will not lie upon the order of the Chancellor, either at common law or under our statutes. In Creighton et al. v. The Planters and Merchants Bank, [3 Ala. Rep. 156,] it is true, the Court say, “ By our staute, appeals and writs of error appear to be considered as equivalent remedies, and we think we shall most effectually carry out their intention by allowing the writ in this instance.” In that case the order was final, and the question was, whether it should not be revised by appeal, instead of a writ of error. The generality of the remark must be restricted to the case before the Court, and thus considered is correct; for the statute gives either an appeal or writ of error upon such a definitive sentence, [Kennedy’s heirs and ex’rs. v. Kennedy’s heirs, 3 Ala. Rep. 434.] would seem to lead to the conclusion, that an interlocutory order, which is the subject of revision, should be removed to the higher Court by appeal. Without undertaking to inquire whether the order in the present case, is of that character, we are satisfied that the writ of error cannot be sustained, and accordingly direct that it be dismissed.