Punderson v. Brown, 1 Day 93

By the Court. The facts respecting the taxes, and the nine acres incumbered thereby, may be laid out of the case ; because, first, it does not appear by thp'deeree, that the appraisers knew of this incumbrhnce, hnd if they did not, the petitioner has sustainedho injury ; but, see-ondly, if this incumbrance was considered, still k cannot affect the case, for the nine acres had become irredeemable, the purchase money not having been paid, by the petitioner, within the time limited by law.

The only question, then, is, whether, under the circumstances of this case, there was any right in the pe-tiiionerlo redeem, the equity of redemption having been taken by Punderson’s execution, and transferred to him ? It was argued by the counsel for the defendant in error, that an equity of redemption cannot be taken on an execution, for that the statute authorizes a levy on “ all lands and tenements, belonging to any person, in “ Ins own proper right, in fee,” &c.

To this it may be answered, that the policy of our law is, that every species of property should be responsible for the payment of debts j and that, if the construction contended for should prevail, no estate for life, or years, could be subjected.; yet the practice is otherwise. But the estate, which a mortgagor has in the mortgaged premises, is real estate, and often of great value.

It descends to heirs, under the statutes of distribution, and does not go to executors ; it passes by words in a devise, which pass real estate ; and it is ever considered as such in substance, though, technically speaking, the legal right is in the mortgagee. It may be added, that it would operate great injustice, to give this statute a construction, by which equities of redemption should be exempt from liability to the payment of debts ; nor have the Superior Court, it is believed, ever admitted such a construction.

The principle, therefore, adopted by the Superior Court, in passing this decree, must have been, that the levy of an execution upon an equity of redemption, in every case, operates like a second mortgage ; and, of course, that property thus taken is redeemable from the execution creditor. This is not a legal principle. In examining this principle, the statute must govern; since the right to take lands by execution is given by the statute.

After describing the proceedings to be had under an execution levied on land, the legislature declare, “ and all executions, levied upon such houses and “ lands, being, with the return of the officer thereon, re- “ corded in the records of lands, ⅛ the town wherein “ such houses or lands are situate, and also returned into “ the clerk’s office of the court, out of which the same is- “ sued, and there recorded, shall make a good title “ to the party, for whom they shall be taken, his heirs “ and assigns, forever.” It is undoubtedly a fair construction of this act, that whatever interest the debtor had, should, by the levy, become vested in the creditor.

But the principle adopted by the Court, in this case, transfers to Punderson a mere redeemable interest, or a mortgage, which is personal estate. The equity of redemption, however, in Brown, the petitioner, was a thing totally different, to wit, real estate. Their principle leaves Punderson still a creditor, and Brozan a debtor, to the amount of the 42/. 10,s. and the execution entirely unsatisfied. Indeed, the creditor has obtained only a lien on the property, which maybe removed, by the payment of the debt. The appraisal is, tliereiore, idle.

But such ideas are not suggested by the statute, and, therefore-» cannot be supported. To the argument of the counsel for the defendant in error, that if the levy of an execution be not treated merely as a second mortgage, it will follow, that the appraisers may be obliged to decide many very important questions, it maybe replied, first, that apprai-gérs 0£ jan(j Upon executions, according; to the universal-1 .

J ly acknowledged construction oí the statute, may be obliged. to decide very nice and interesting questions ; as where the fee is levied upon, and it is incumbered by a tenancy by the curtes'-, or dower, or other life estate, or by a tenancy for years. Questions may here arise, as to the value of those incnmbrances, or whether the instruments, by which they were created, are usurious, fraudulent, or forged, or as to the legal effect of those instruments.

So, in case the estate of the mortgagee should be levied upon, the appraisers may he obliged to decide, also, as to the validity of the deed, and the amount due, rents and profits, betterments, &c. as circumstances may require. But, it will be difficult to see how such a levy should operate as a second mortgage. It is not here asserted, that the interference of a court of chancery may not be proper, in a case, -which may be imagined.

An appraisal maybe made under a misapprehension respecting the amount of the debt, the quantity, quality, or title to the property-, and in many other ways, when the aid of chancery may be necessary to the attaining of justice. But none of those embarrassments occur in the case before us ; for, secondly, the petition and decree shew, that no difficulty here existed ; the appraisers had no question, but the most simple, to settle ; the amount of the incum-brance was the debt due to Halsey and Bellows ; there were no rents and profits, or betterments, to be adjusted, for the mortgagor had remained In possession.

When the value of the land was ascertained, and the principal and interest of the debt due to Halsey and Bellows deducted, the residue was the value of Brown's equity of redemption. This paid only apart of Pundcrson's execution. Why, then, did not this levy take the whole interest of Brown, and, consequently, his right to redeem ? The legal estate is vested in Punderson, by contract; the equity of redemption, by operation of law, is transferred to him ; and the legal and equitable interest being gone, what has Brown left ?

Fiad Brozan released his equity to Punderson, surely the whole interest would have been vested in Punderson. It is as effectually done, by the levy, in pursuance of the statute, as it could have been, by deed ; and with no safety can the Court .adopt any other principle. Suppose A. mortgages to B. land worth g 1000 to secure the payment of $ 500. 0. has an execution against A. for g 500, and levies it on his equity of redemption, and procures it all set off to him. In this case, B. can foreclose A. and C. C. can pay B, $ 500, and become vested with the whole.

In the cases put, suppose C.’s execution is g 250, and it is levied on an undivided interest in the equity of redemption, in the proportion that 250 bears to 500. If C. should purchase B.’s mortgage, can A. redeem from C. paying g 750 ? He cannot ; for the property levied upon is irredeemable, and C. has a right to an undivided fourth part of the whole property, subject only to be foreclosed by the mortgagee, or his assigns.

For these reasons, it appears to this Court, that Brown, in this case, had no interest in the mortgaged premises, after the levy of Pundersoii's execution ; and, therefore, that the judgment of the Court below, permitting him to redeem, is erroneous. p. 174.