PERKINS and ELLIOTT VS MAYFIELD, 5 Port. 182

COLLIER, J. The assignments of error and the argument for the plaintiffs, assert that the decree of the County Court is too defective to authorise the issuance of an execution, and that the execution is in other respects, irregular and void. If the right of the Court to examine these questions, was untrammelled by previous decisions, it is not improbable, that we should conclude, that a void fi. fa. was such process, as property could not be condemned to satisfy.

If an execution is so palpably defective, and for causes appearing on its face, or on an inspection of the judgment or decree, on which it issues, as to be void, the terms of the issue submitted to the jury, would seem to authorise the claimant of property, to avail himself of the defect; but this Court, in the case of Collingsworth vs Horn, and other cases, have determined otherwise; and we are contented that the doctrine of stare decisis, should control our opinions on this point, esteeming it of more importance that the question should be settled, than in what way it is determined.

We proceed now to examine the questions arising upon the motion in the Circuit Court for instructions to the jury, and the refusal of the Court to give them. And these are— First — Is the deed from Edward B. Elliott to the plaintiffs, founded upon a sufficient consideration! Second — Had Edward B. Elliott such an interest in the property conveyed by the deed, as subjected it to levy and sale, to satisfy a judgment against him!

Third — Are the terms of the deed such as to make the property subject to the defendant’s execution! 1st. — A principal is under a moral obligation to save his surety harmless, if he have the ability to do so; and suck an obligation is sufficient to sustain an express promise.— Worseley vs Demattos. In Suffield vs Bruce, it appeared that the plaintiff had paid the defendant the whole of a demand claimed by him, but part of which was due to a hird person.

Lord Elienborough, held that the de-.endant’s promise to indemnify the plaintiff against the claim of the third person, was founded on a sufficient moral obligation, to render it binding, although such promise was made by the defendant, after he had received the money from the plaintiff. In the case of the United States vs Hooe, —Fitzgerald was appointed a collector of the revenue, in seventeen hundred and ninety-four, and executed a bond with Hooe, as his surety for the faithful performance of the duties of his office.

In seventeen hundred and ninety-nine, being largely in arrears to the United States, for monies collected, and desiring Hooe’s indorsement, to enable him to draw money from the Bank, Fitzgerald executed a deed in trust, conveying certain real estate to trustees, to indemnify him against the consequences of his suretyship and indorsements. It was not denied but that the property was bound to make good to Hooe, the defaults of his principal as a collector of the revenue.

The Chief Justice, in delivering the opinion of the Court, remarks: “That the property stood bound for future advances, is in itself unexceptionable. It may indeed be converted to improper purposes, but it is not positively inadmissible. It is frequent for a person who expects to become more considerably indebted, to mortgage property to his creditor as a security for debts to be contracted, as well as for that which is already due. All the covenants in this deed, appear to the Court to be fair, legitimate and consistent with common usage.” To the same effect, is Badlam vs Tucker.

In Marsh vs Lawrence, there was a conveyance of personal property, by a principal, as an indemnity, for the future liabilities of his surety, and the consideration was not questioned. This question seems so clear upon principle as well as authority, that we cannot doubt but the deed bears on its face, evidence of a sufficient consideration. If the fairness indicated by the deed, be unfounded in fact, it was entirely competent for the defendant to have attacked it for extrinsic causes; but no effort of this kind was made. 2d. The interest of Edward B.

Elliott, in the slave, was a mere equity without even possession, for one of the plaintiffs had that, at the time of the levy. The deed must be considered as an indemnity in the nature of a mortgage, with a power of. sale to the plaintiffs; and must be scanned by those rules, which are applicable to mortgages of the personalty. Anciently, mortgages, technically so called, were confined chiefly, if not entirely, to the realty; at this day, they embrace both descriptions of property.

In regard to lands, after the mort-guage had become forfeit, the equity of redemption could not be sold under an execution * But the law is laid down differently by Chancellor Kent, (in the 4th of his Com. 154,) who says that though the day of the payment of the money, intended to be secured, has past, so that the mortgage is forfeited, yet the mortgagor, “while in possession, and before foreclosure, is regarded as the real own-, er, and a freeholder, with the civil and political rights belonging to that character, &c.” To sustain this position, the learned commentator refers to many authorities, both English and American, which we do not deem it necessary to look into, as we have no wish to combat the doctrine. lathe case of M’Gregor & Darling vs Hall, this Court, (at January term, eighteen hundred and thirty-three,) decided that the interest of the mortgagor in slaves, was liable to be sold under execution, against him.

The opinion of the Court does not inform us whether the possession had been changed or the law day had passed, nor are either of these considered in the opinion, as material circumstances. In looking into the record, however, we discover that the mortgagor still retained the possession, so that in addition to a mere equity of redemption, there was in the defendant in execution, such title as the possession could give him. Without intending to overrule that case, let us en-quire whether a mere equity can be reached by execution.

In the case of Wilkes et al vs Ferris, it was determined, where property has been assigned by a debtor to trustees, for the payment of certain specified debts, the resulting trust or residuary interest remaining to the assignor, after the purposes of the assignment, the payments of- the debts are satisfied, is not such an interest as can be taken and sold on execution. Mor is a mere equitable title liable to levy and sale.—Thomas vs Marshall. In Badlam vs Tucker et al. the Court say, “A mere equitable interest cannot be taken and sold on execution; for where there is no legal right there is no legal remedy.

This was settled on great deliberation by the Court of King’s Bench in the case of Scott vs Scholey et al; and the reasons there given, are entirely satisfactory.” “The judgment of the Court in that case, was sanctioned by the Court of Common Pleas in the case of Metcalf et al. vs Scholey et al. —and is supported by all the authorities:” Again, “it is only by statute, that equities- or rights to redeem are subject to attachment by ordinary process.” The Court then, after stating the creditor has a remedy in equity, and may possibly remove the in-cumbrance himself, concludes, “but until payment, or tender of payment of the money due to the paw-nee or mortgagee of goods and chattels, it is very clear that the creditor of the pawnor or mortgagor has no remedy against them by attachment and execution.” In the case of Marsh vs Lawrence, there was a bill of sale, or an assignment of personal property, in which the object was declared to be, to secure-the vendee as the surety of the vendor.

And it was agreed that should the vendee become liable, he might turn the goods out on execution, or that they should be at his disposal at private sale, accounting to the vendor for the proceeds: the vendor retained the possession, which ivas held to be consistent with the deed. The Court in the opinion delivered, say that the vendor had an equitable interest in the nature of an equity of redemption in the goods, and a right to any surplus if they were sold; but does not consider them in judgment of law, as his property, so as to be subject to an execution against him.

The Court then say, that the vendor had a mere equity, which could not thus be disposed of. This case goes the entire length of determining that an equity of redemption of personal property, with possession in the mortgagor, can not be sold on execution. And if such be the law in New 'York, the Courts of that State, must distinguish between a mortgage of personal and real estate, either under the influence of a statute, or from a consideration of the dissimilar qualities of these descriptions of property.

We do not deem it necessary, or even proper to go to this extent, (though we might believe such to be the law,) as this Court, in the case already cited, determined that there was no distinction in this respect, between an equity of redemption in personal and real estate, and because the case at bar is distinguishable from that, in the mortgagor having parted with the possession in favor of the mortgagees.

Without pretending then to interfere with any principle adjudged in the case of M’Gregor & Darling vs Hall, we are of opinion that a mere equity unaccompanied by possession, cannot be reached by execution, and that the interest of Edward B. Elliott being of this character, was not .subject to levy and sale. 3d. The mere fact of the property being conveyed as an indemnity to the plaintiffs, as sureties of the executor of the will of John Spencer, senr. does not authorise a creditor or legatee of that estate, to have it .seised by execution, to satisfy a judgment or decree in his favor.

By the conveyance and delivery to the mortgagee, it ceased, to be the executors, until he freed the estate from all incumbrances and charges, with which the plaintiffs might be ultimately, chargeble as his sureties. That this had not been done, presumptively appears from the decree of the Judge of the County Court, in which near five thousand dollars are decreed to be paid to different legatees under the will; and conclusively from the execution of the defendant.

By the terms of the deed, the plaintiffs are invested with a discretion, as to the time and place of sale of the property conveyed, whenever their liability is fixed, as the sureties of Edward B. Elliott. This discretion is of importance to them, and may enable them to sell the property for a better price than it would command at a forced sale, under execution. The motion for instructions to the jury, placed ‘the case in. the most favorable predicament for the defendant. It impliedly admitted that the property might be condemned, if there were no other demands against the executor, than the one in con™ troversy.

We do not pretend to say that this admission was not proper in point of law, but certainly,. if there were other outstanding claims, the plaintiffs should not be required to forego the advantage of a sale, directed by their discretion, as to time and place, and have the property forced from them at the hazard of a loss. We are satisfied that the deed, followed as it was by delivery of the property, passed such an interest to the plaintiffs, as is incompatible with its seizure to pay Edward B.

Elliot’s debts; and that there is nothing in its terms' or its purpose, or the relationship of the parties, to-change this conclusion. Having considered the material questions arising, in this case, we will briefly examine one or two other points, discussed at the bar, which do not influence our judgment here; but yet are worthy of notice, as settling the practice. And first, as to the issue submitted to the jury,—this did not assert the liability of an equity of redemption to the defendant’s execution, but the entire property in the slave, without incumbrance.

A verdict responsive to this issue, in favor of the defendant, would have determined all interest and title in the slave, to be subject to the execution,- and thus have deprived the plaintiffs of all benefit to be derived from their mortgage. And this might have been the result without any proof shewing the mortgage to be defective for extraneous causes. The issue should always conform to the nature of the interest sought to be subjected—if an equity of redemption, it should be so expressed, and if there is no qualification, it must be supposed to be the en-tire interest which is proceeded against.

Under the issue submitted to the jury in this case, had the slave been sold-in pursuance of the verdict and judgment of the Circuit Court, and have yield-ed a sum, (as in all probability he would,) more than adequate to satisfy the execution, the excess-under the statute, instead of going to the plaintiffs, would have went to Edward B. Elliott; and this too, though the mortgage was free from objection.

For the defendant, it is insisted, that though the record may show error in the proceedings of the Circuit Court, yet this Court should not regard it, as that Court should have dismissed the claim of the plaintiffs, for a defect in their bond, which made it void. Without examining the bond to ascertain its sufficiency, we are persuaded that we have no right to look into errors of the inferior Court, committed against a defendant here. He cannot legalize errors committed against a plaintiff here, by shewing that had his rights been properly regarded, the plaintiffs’ case could not have reached this Court.

From a view of this case, as presented, the judgment of the Circuit Court is reversed, and the cause remanded. 4 Stew. & Porter 237. Chitty on Con. 10. 1 Burr 474. 2 Stark R. 175. 3 Cranch 73. 1 Pick. 389. 4 Cowen R. 461. 2 D. & E. 462. 3Stew. & Porter 397. 5 Johns. R. 335. Hard. 19. 1 Pick. R. 399. 8 East 467 5 B & P. 467. 4 Cowen 461. Aik. Dig. 162 §13. Saun. R. 11-n 17-& m.