Paulling v. Barron, Meade & Co.

32 Ala. 9

• Court: Supreme Court of Alabama
• Decided: January 15, 1858
• Status: Published

Opinion

RICE, C. J.

The act of 1820 declared, that “ the equitable title or claim to land or other real estate ” should thereafter “be liable to the payment of debts, by suit in chancery, and not otherwise.” — Clay’s Big. 350, § 31. That provision of the act was of full force when the land in controversy in this suit was sold by the sheriff under process from the court of law. The land was sold by the sheriff as the property of McNaughtou, who had mortgaged it in fee, and who, at the time of the sale, as well as at the time of’ the rendition of the judgments at law upon which the process was founded under which the sale was made, had no interest in the land except an equity of redemption. The law-day of the mortgage had passed before any of the judgments at law were rendered. The controlling question in the case is, whether, whilst the provision of the act of 1820 above referred to continued of force, the equity of redemption, which existed in the mortgagor of the land, could be sold by the sheriff, under process issued out of a court of law, and founded upon judgments at law rendered after the law-day of the mortgage.

After the law-day, the money secured by the mortgage not being paid at the time therein specified, the legal estate was absolutely vested in the mortgagee; the mortgagor had nothing left but an equity of redemption, “ that is, a right in equity, on payment of the principal, interest, and costs, within a reasonable time, to call for a re-conveyance of his land.” — 2 Greenleafs Cruise on Real Property, 80, 81, 125, 126, title XV, Mortgage, ch. I, § 11; ch. III. §§ 1 and 2. As the equity of redemption was “ the mere creature of a court of equity,” we cannot hesitate to declare it an “ equitable title or claim ” to the land, within the meaning of the act of 1820 above cited; and because it was such claim or title, the sale of it by the sheriff, shown in this case, was in direct contravention of the act of 1820, and a nullity. That sale did not give or affect any right or interest. — Wilson v. Beard, 19 Ala. R. 629; Brown v. Bartee, 10 Smedes & Marshall, 268; Boarman v. Catlett, 13 id. 149; Henry v. Fullerton, id. 631; Wolfe v. Dowell, ib. 103; Thornhill v. Gilmer, 4 id. 163; Baldwin v. Jenkins, 23 Mississippi R. 211; Cantyon v. Dorn, 27 ib. 246; Badlam v. Tucker, 1 Pick. R. 399; Bangor v. Warren, 34 Maine R. 324; Camp v. Coxe, 1 Dev. & Batt. 52; Goring v. Shreve, 7 Dana, 64; Swigert v. Thomas, ib. 220; Bronston v. Robinson, 4 B. Monroe, 142; Waller v. Tate, ib. 529; Scott v. Scholey, 8 East’s R. 466.

2. Although the equity of redemption could not be sold by the sheriff, under the process of the court of law, it was alienable by the deed of the mortgagor, (2 Green-loaf’s Cruise, 128, title XY, Mortgage, ch. III. § 8 ;) and as it appears to have been assigned to the complainant by the deed of the mortgagor, the complainant may assert it by bill in chancery.

3. In relation to the proceedings in the action at law against the complainant, for cutting down and carrying away trees on the land in controversy, we will only say, at this time, that there is nothing in those proceedings which can bar the redemption which is here sought by complainant, as the assignee and owner of the mortgagor’s equity oí redemption. — 2 Greenleaf s Cruise, title XY, Mortgage, ch. II, § 15.

The chancellor erred, in holding that the “right to redeem from the mortgage depended upon the right to redeem from the sheriff ’s sale,” and that the sale of the equity of redemption by the sheriff passed or affected any right whatever, and that there was any validity in the sheriff’s sale. — See the cases above cited from the Kentucky and North Carolina Reports. There is nothing in this record which bars or defeats the equity of redemption, which once belonged to the mortgagor, but has now been assigned by him to the complainant. The decree of the chancellor is erroneous, and is reversed. The cause is remanded for further proceedings consistent with this opinion. The appellees must pay the costs of the appeal.