Phyfe vs. Riley, 15 Wend. 248

'.By the Court, Savage, C. J. The defendant presents three points of defence: The first is in substance, that the plaintiff had no title ; Second, title in himself from E. Burke, through. Dennis ; Third, that he is mortgagee in possession. The plaintiff’s title depends upon the effect of the sheriff’s deed. The sale by the sheriff seems to have been regular.

He had in his hands three executions issued upon three judgments, one of which in favor of Joseph Burke, appears to have been satisfied long before; the others appear to have been subsisting liens ; and by virtue of all these the sheriff sold the interest of Edward Burke, the defendant in the executions, on the 12th May, 1831. The plaintiff became the purchaser, and the sheriff gave him the certificate required by law.

Previous to this sale, trustees had been appointed by virtue of proceedings against Edward Burke as an absent debtor; and those trustees, on the 31st December, 1831, paid the plaintiff $346,76, being bis purchase money with ten per cent, interest thereon, as appears by his receipt set forth in the case. This payment was made by way of redemption under the statute, as appears by the notice of the trustees to the sheriff, dated on the day of the payment of the money. The question is, what was the effect of that redemption ?

By the statute there are two classes of persons entitled to redeem ; and tfaére are two kinds of redemption, the consequences of which are very different. The first class of persons entitled to redeem, consists of the defendant in the execution and all persons claiming an absolute title under him, as his heirs, devisees, grantees, or those who shall have acquired title by deed,sale under mortgage,or execution, or by any other means to the premises sold. 2 R. S. 370, $ 46.

The trustees, in cases of proceedings against non-resident debtors,&c. by virtue of their appointment and oath, it is declared by statute, shall be deemed vested with all the estate of the debtor from the first publication of the notice. 2 R. S. 15, § 3, and 41, § 6, sub. 1. All the title, which E. Burke had in the premises, therefore, became vested in the trustees, and they were for the purpose of redemption, grantees within the statute. The defendant or his heir, devisee, grantee, &c. may redeem within one year, §> 45. In this case the trustees did redeem within one year.

The second class of persons entitled to redeem cons¡sts 0f judgment creditors and their assignees, who may redeem after the .expiration of the year allowed to the defendant and his grantees, and before the expiration of fifteen months after the sale. When the redemption is made by the defendant or his heirs,, devisees, grantees, &c. the sale of the premises so redeemed, and the -certificates of such sale, shall be null and void,

section 49 ; the proceeding is at an end. When the redemption is made by creditors, the redeeming creditors, on the contrary, acquire all the rights of the original purchaser, but liable to have the property taken from them on certain conditions, by certain other creditors, in the manner particularly pointed out by sections 51, 55, &c. In such case the sheriff’s sale remains effectual, and is to be consummated by a deed to the redeeming creditors. The trustees in this case, by redeeming acquired no greater rights or powers than the defendant himself would have acquired, had he redeemed.

The sheriff’s sale and certificate became void, and no other proceeding could be founded upon it. The deed subsequently executed by the sheriff was inoperative and void, as much so as if he had given a deed without any sale or certificate. The plaintiff therefore did not show any title in himself. I might stop here without examining the other points in thé case, but as they have been argued, and may be operative in the defendant’s favor if-1 should be mistaken in pronouncing the plaintiff’s title defective, I will proceed to their consideration.

The next ground assumed by the defendant is, that he has a deed from Edward Burke to Joseph Dennis, and from Dennis to himself. The deed from Burke to Dennis bears date the 17th February, 1830, subject to all encumbrances. It was subsequent to all the encumbrances upon the property, but anterior to the issuing the attachment against Burke as an absent debtor. That deed of course overreaches the title of the trustees, and shows that the trustees were not in fact grantees of Edward Burke.

He had parted with all his interest in the premises before proceedings were instituted against him ; and as he had not title, of course the trustees had none. The plaintiff has introduced parol testimony to show that this deed must have been ante-dated, as Dennis admitted after the proceedings against Edward Burke were commenced, that he had not purchased Edward Burke’s share of the property. This testimony was clearly inadmissible. The counsel seem to suppose that the court will determine the question of fact.

A perusal of the 36th rule of this court will show that there is some mistake on that point, and it will also show that the best way to try a cause is to submit the facts to a jury, and not to endeavor to convert the court into a jury. We have in this case the whole testimony, without a fact found or admitted; but I have thus far considered the facts stated and not controverted as facts found or agreed upon. Considering therefore the deed from Burke to Dennis as executed bona fide at the time it bears date, the consequences which I have stated follow.

It is not necessary to say what is the effect of a redemption by a party who had no interest in the premises. I apprehend it is clear that in case of an attempt to redeem by such a person, the purchaser would not be obliged to receive the money, but might insist on a deed from the sheriff, when no redemption had been made by any person authorized by the statute to make such redemption; but if the purchaser chooses to receive his money and ten per cent, interest, within a year, must it not be considered as done on the behalf of the defendant in the execution, or his grantee ?

It certainly cannot be tolerated, that the purchaser shall receive his money and interest and yet retain his purchase—that would be unjust. If a stranger, from motives of humanity or any other motive, pays the money and the purchaser receives it, there should be an end to that sale. The third point of defence is, that the defendant is the assignee of the mortgage given by Joseph Burke, the admitted source of title, and is in possession. He is therefore mortgagee in possession.

Previous to the adoption of the revised statutes, it was well settled that a mortgagee in possession of the mortgaged premises might protect his possession by force of his mortgage. 10 Johns. R. 480. 7 Cowen, 13. The revised statutes have not altered the law in this respect, unless it is by way of inference from the provision that no action of ejectment shall hereafter be maintained by a mortgagee, or his assigns or representatives, for the recovery of the possession of mortga8'ed premises. 2 R. S. 312, § 57.

The cases deciding that a mortgagee might protect his possession by- means of his mortgage, dojiot give as a reason for that decision that the mortgagee might recover possession in an action of ejectment ; nor do the revised statutes necessarily alter the law as to the interest vested in the parties to the mortgage; they merely affect the remedy. Formerly, a mortgagee after forfeiture might pursue several remedies at the same time, and by so doing subject the mortgagor to unnecessary costs.

The legislature may have intended merely to prevent oppression ; they certanty did not intend to give an exposition of the rights of the mortgagor and mortgagee any farther than as to the particular remedy. Much of the difficulty in establishing an uniform rule in relation to mortgages grows out of the fact, that a mortgage has been differently considered in courts of equity and courts of law. In the former it is merely a security for money, in the latter it has been understood sometimes as a Conveyance upon condition.

In courts of law, in this state particularly, the mortgagor is considered the true owner against all the world except the mortgagee ; and even the mortgagee has been considered merely an encumbrancer until forfeiture of the condition by non-payment of the money. Then and not till then is he considered as having an interest in the land ; then, formerly, he might claim the possession by an action of ejectment, and upon the trial prove the condition broken, and thus show a complete title.

Now, by the revised statutes, the mortgagee must complete his title by other proceedings before he brings his suit; but if the mortgagee, after forfeiture, obtains possession in some legal mode other than by an action, why should the mortgagor or those claiming under him recover the possession from the mortgagee without paying the money secured by it ? He is still considered as having the legal estate after condition broken ; having that estate and being in possession, what reason can be given.why he should be turned out of possession ? .

Is it that he may be put to the trouble and expense of foreclosing his mortgage, and then bringing his ejectment ? Such, surely, cannot be the policy of the law ; on the contrary, litigation and expense to parties will be saved by permitting the mortgagee to retain possession, until the mortgagor or those claiming under him shall institute proceedings in a court of equity for the purpose of redemption. It has been decided that the estate of the mortgagor, before foreclosure, is a legal estate which may be sold on execution. Waters v. Stewart, 1 Caines’ C. in Err. 66,70. In Jackson v. Willard, 4 Johns.

R. 41, it was decided that the interest of a mortgagee, after forfeiture and before foreclosure, cannot be sold on execution while the mortgagor is in possession. Kent, Ch.

Justice, says, “ Until foreclosure, or at least until possession taken, the mortgage remains in the light of a chose in action. ” “ When the mortgagee has taken possession of the land, the rents and profits may, perhaps, then become the subject of computation and sale.” It cannot be denied that the mortgagee has an interest in the mortgaged premises, and that interest after forfeiture is a legal interest; it is indeed inchoate until foreclosure, but it has heretofore been considered sufficient to protect him in the possession of the mortgaged premises when legally obtained.

Being unable to see in the revised statutes any thing which changes this rule of law, I am unwilling to depart from previous adjudications, unless I can perceive a clear intention of the legislature to change the rule. On the whole case, therefore, it seems to me that the defendant is entitled to judgment.