Williams v. Cochran

13 Del. 420

• Court: Superior Court of Delaware
• Decided: May 15, 1888
• Status: Published

Opinion

Houston, J.,

announced the opinion of the Court.

In the cases of fi. fa,. attachment of Nathaniel Williams v. William A. Cochran et. al., No. 75, to May Term, 1888, and of The Walton & Whann Company v. William A. Cochran, No. 99, to the same term of this Court, and which were heard before us' at the last, and were held under advisement by us until this term, full arguments in writing having in the meantime been submitted to us by the counsel in them, and which attachments were laid in the hands of Eobert E. Cochran, as garnishee and tenant of William A. Cochran, to attach whatever share of the rents, if any, the latter might be entitled to in the premises in question under all the facts disclosed in the record of the cases before us, and in which the garnishee in his answer to the respective attachments submits the question to the Court whether the plaintiffs in them, the said Nathaniel Williams, and The Walton & Whann Company, or the said Catharine H. Pascault, the purchaser of the premises under the proceedings and decrees for the sale of them in foreclosure of the mortgage in the Circuit Court of the United States for the Delaware District referred to in the record, and to what proportion of said rent, if the same should legally be apportioned; and concluding his answer in each case with the statement that he holds said rent subject to the order of this Court. There is but one answer the Court can give to this question and that is that this is no case for any apportionment of the rent in question under the provisions of our statute, because the sale of the premises was neither by the sheriff, or by virtue of execution directed to him, but it was made under a decree of foreclosure in the Circuit Court of the United States for this District, of a mortgage upon the premises, and by a trustee of that Court appointed for that purpose, and were purchased at a sale by the mortgagee for a sum of money less than the amount of principal and interest due upon it. We therefore order the rents referred to in the answers of Thomas R. Cochran, the garnishee as in hands be paid to the said Catherine H. Pascault, the purchaser of the premises under the mortgage. We consider the ruling in this case to be well sustained by the cases cited in the argument of the counsel for her. For what was said by the Court in the case cited by him of Wilson v. Ddaplaine, 3 Harr., 499. which was an action in this court for money had and received, being for a part of the year’s rent of intestate land sold by the Orphans’ Court, up to the time of sale claimed by the administrators of the intestate, is as applicable in this as it was in that case, viz : that “ the rule of the common law that rent follows the reversion is admitted on both sides. But it is contended for the administrators that this rule ought to be, or is, modified by our acts of Assembly apportioning rent in certain cases. We are of the opinion that those acts do not apply to the present case, and the principle of the common law applies. The rent follows the reversion. The reversion is vested in the purchaser by virtue of the sale and assignment under the Orphans’ Court, at the time when the rent falls due. For rent is indivisable. None of it is due until the expiration of the time during which it is accruing. The legistature has changed this in the particular case of a sale by the sheriff by virtue of execution process on judgment or decree, and they have apportioned the rent in that case between the debtor and the purchaser. But the provision extends no further. And in case of a sale of intestate land, under an order of the Orphan’s Court, which is but a mode of dividing the land among the heirs of the intestate, and the purchaser takes all the estate of the intestate with its incidents, the accruing rent being one of them.” 3 Harr., 500. And the reason for this ruling is only the stronger when the land is mortgaged and the sale of it is under a decree of foreclosure of the mortgage in an equity proceeding in the Circuit Court of the United States for the district by a trustee appointed to sell it, as in this case where the lien of the mortgage was as binding both in law and equity on the accruing rents and profits of the premises, as it was upon the land itself; for by the common law the non-payment of the mortgage money at the time fixed upon by the parties, was in the nature of a forfeiture of the estate by the mortgagor, and authorized the mortgagee to enter immediately, and to take the emblements. But in Equity he held them, as he did the land, only as a security for the payment of the mortgage debt; and upon redemption he was bound to account for such emblements. Having the legal right, however, and the land and its products being a security to the mortgagee for his debt, a court of equity will not deprive him of his legal right to the emblements until the mortgage money and interest is fully paid. Alrich v. Rylands, 1 Barb. Ch., 613; Jones on Mortgages, Sec., 1654: Shepard v. Philbrick, 2 Denio, 174; Houts v. Showalter, 10 Ohio St., 124. And to these citations we may add the authority of Chancellor Kent’s Commentaries, Vol. 4, 160, 161, and of 2 Sto. Eq. Juris., Sec. 1015.

The conclusion of the court therefor is that the rents referred to in the hands of the garnishee, the said Thomas R. Cochran,. should be paid to the said Catharine H. Pascault, the purchaser of the premises at the sale thereof on the foreclosure of the mortgage of the same wherein before stated.