Jacob H. Van Deusen versus John Frink Junior, 15 Pick. 449

The opinion of the Court was drawn up by Shaw C. J.

The main question requiring the consideration of the Court in the present case, and which has been elaborately and very ably argued, arises from the instructior given by the court to the jury upon the trial of the issues. and which is thus stated ; “ that to maintain the issue on the part of the plaintiff, that the deeds in question were fraudulent and void, it w-as competent for him to show in evidence any fraudulent or deceitful practice as against Deming, and if any such fraud or deceit were satisfactorily proved, the deeds were fraudulent and void, and might be so shown by the present plaintiff, a creditor and purchaser of the equity of redemption, although Deming had done no act and made no attempt to avoid them.” The Court are all of opinion, that, under the circumstances of the case, this direction was right.

These circumstances were, that prior to any of the conveyances, which are the subject of consideration in this action, the premises had been mortgaged to the Massachusetts Hospital Life Insurance Company, which mortgage has remained outstanding to the present lime. The only right of Deming was that of a mortgager, that is, one who, as against the mortgagee, has a right of redemption only, and stands as tenant at will, but as against others, has an estate which he can further mortgage or convey, and which may be attached and sold in the manner directed by statute.

It also appears, that Deming had leased the estate to Wendover for five years, and received the rent in advance, which lease was outstanding at the time of the conveyances in question, so that Deming had not the actual possession or right of possession, and could not confer such right on any other person by bis conveyance ; he had only such constructive possession as a landlord can have by the possession of his tenant, that is, a possession not adverse, not amounting to, or capable of being deemed to be an ouster or disseisin, or preventing the owner, by any rule of law, from conveying.

It also appears, that prior to either of the conveyances to Frink, Deming had made a mortgage in good faith, to one Fabius Beckwith, which has never been contested by any of the parties. Prior to the sheriff’s sale, under which the plaintiff purchased, Frink had taken an assignment of this last mentioned mortgage, which he held when the bill was jrought.

Under these circumstances the rights of all these parties being purely equitable, all arguments arising from the supposed disseisin of Deming, and the necessity of an entry by him, to avoid the deed to Frink, are wholly without foundation, and if Deming could regain his estate only by such entry, he could not regain it at all.

Without referring to the mortgage to the Massachusetts Hospital Life Insurance Company, and the legal estate thereby vested in them, the fact that Deming had made a valid mortgage to Beckwith, and that Frink had become the assignee of that mortgage, gave him a complete right of possession as against Deming, which he could not defeat or affect by his entry.

Supposing then the mortgage and the release made by Deming to Frink subsequently, were, for any cause, void as against Deming, the sole remedy of the latter would be, to tender the amount, which he admitted to be good, .and in case the mortgagee should refuse to accept such tender and release the estate, his only remaining remedy must be to bring his bill to redeem, and if the fraudulent release should be set up to bar him of his bill to redeem, or the fraudulent mortgage to enhance the amount to be paid upon such redemption, he could avoid them by proper averments and proof of such fraud.

The argument therefore drawn from the technical rule of disseisin, and the necessity of an entry on the part of Deming, cannot be sustained. Upon a general review of the argument, the Court are of opinion, that it is not necessary to decide several of the questions which have been discussed, but that this cause must be decided upon its peculiar circumstances, upon the construction of our own statutes, and upon the just application of the provisions of these statutes to those circumstances.

The plaintiff combined in himself both characters, that of a creditor of Deming and that of a purchaser of the equity of redemption. In the former, it seems not to be seriously questioned that he had full power to set aside and avoid all mortgages, conveyances, and incumbrances of every description, made by Deming, through fraud and covin, to delay and defraud the creditors of Deming. In the latter character, as purchaser, he had by force of the statutes, all the power and authority to redeem which Deming himself had jefore the sale.

The St. 1783, c. 57, § 4, provides, that equities of redeeming lands mortgaged &c. may be taken by attachment and set off on execution, and further provides, that any person at whose suit such right in equity of redeeming such mortgaged lands is taken in execution, shall have the same and as full and ample right and power of redeeming such lands as the mortgager had, or ought to have, and may procure and receive a discharge of mortgages, in the same manner as the mortgager might have done.

By the St. 1798, c. 77, the former act is not repealed in terms ; whether it is so in effect, so far as it provides a different mode of disposing of the interest attached or taken on execution, is immaterial. This statute, instead of directing that an equity of redemption shall be appraised and set off on execution like other real estate, provides, that the equity of redemption may be sold by the sheriff, and his deed shall convey a good right to redeem, to the purchaser.

Taking this statute in connexion with the former, and con struing its various provisions according to the apparent intent of the legislature, we think it very clear that the full and entire right to redeem which the debtor had before the sale, is effectually transferred by force of the statute, and vested by the sheriff’s deed in the purchaser. The third

section of the statute provides, that all rights in equity of redeeming real estate mortgaged, shall be liable to be attached on mesne process and taken in execution for the payment of the just debts of the mortgager or owner. The officer is to make sale of the same, that is, of all the right, and make good and sufficient deed or deeds of any estate so sold. The terms “ good and sufficient ” mean, good and sufficient in law to pass and transfer the estate so sold, to wit, all the debtor’s right. The fifth

section provides, that all deeds made and executed as aforesaid shall be as effectual, to all intents, to convey the debtor’s right in equity aforesaid to the purchaser, his heirs and assigns, as if the same had been made by such debtor. This, construed according to the principle of liberality which prevails in the construction of all remedial statutes, necessarily imports a transfer of all the debtor’s right to redeem. We think also, that the first

section in the same statute leads to the same conclusion. It is the

section which gives a remedy by bill in equity. It provides, that where the mortgagee has entered for condition broken (the remedy by bill in equity is afterwards extended to cases where the mortgagee has not entered for condition broken, by St. 1821, c. 85, § 2) the mortgager or other person lawfully claiming under him, shall have right to redeem. The purchaser of the equity is by the statute placed in the condition of one claiming lawfully under tne mortgager.

It tnen goes on to provide that, upon payment or tendering, &c., the mortgagee shall be obliged to accept performance and release to the person tendering, having lawful right to redeem the same, and upon refusing, such mortgager, or other person lawfully claiming as aforesaid, may have his bill to redeem. Jurisdiction is conferred on the courts to hear and determine the cause, and to enter up judgment agreeably to equity and good conscience.

The person having a lawful right to redeem, which description clearly includes the purchaser at a sheriff’s sale, is put upon the same footing, in all respects, both as to rights and remedies, with the mortgager.

Considering the general policy of the law, to give a liberal construction to all provisions designed to give a remedy to creditors, to obtain satisfaction of their just debts from the real estate of their debtors, that this has been extended from legal estates to equitable interests, that these statutes, in express terms or by necessary implication, do give to purchasers of equitable estates in mortgage, the same rights and remedies that the mortgagers themselves had, that such rights are to be enforced, not by entries applicable only to legal estates, but by a judicial proceeding in a court of equity, that by established principles of law, Deming would have a right upoi a bill to redeem, to repel and avoid the release, and the second mortgage, if set up against him, upon the ground that they were obtained from him by deceit and fraudulent practice, the Court are of opinion, that the present plaintiff, being the creditor of Deming, and the purchaser of the equity of redemption, at a sale on execution regularly held by the officer, has the same right to avoid those instruments by proof of the same species of fraud, and that the direction in this respect was right.

Several exceptions were taken to the decision of the judge upon the admission and rejection of evidence, upon consideration of which the Court are of opinion, that (except one hereafter stated) the exceptions are not well founded and cannot, be sustained. The exception alluded to was taken to the decision of the Court in point of law, giving a construction to the provisions of the written contract between Frink and Deming, containing mutual clauses of forfeiture in case of failure of performance. The decision was, that these, although mutual and equal in terms, are not so in legal effect.

The Court are of opinion, that without further limitation or qualification, this decision was incorrect, and calculated to mislead the jury, and that although in practice these forfeitures would operate differently, one being to take effect immediately, and the other through the means of a suit or judicial process, yet that in legal contemplation these are to be considered as equa between the parties. For this cause the verdict must be se aside, and a new trial granted.