Jackson ex dem. Tuthill v. Dubois — 4 Johns. 216

Majority

p. 216

Jackson, ex dem. Tuthill, against Dubois.

NEW-YORK,

May, 1809.

Headnote

Though the interest of a mortgagee cannot be sold in execution, yet he may maintain an action of ejectment against the mortgagor, and those who claim under him.

A mortgage not registered, has a preference over a subsequent judgment docketed. Bat jfthe land should he sold by the sheriff under the judgment, prior to the registry of the mortgage, a bona fide purchaser at the sheriff's sale, would be protected against the mortgage.

Where Jl. mortgaged his land in 1800, and adjudgment was obtained against him and docketed in 1801, and the mortgage was afterwards registered in 1802, and the land having been seized under an execution issued on the judgment, the mortgagee attended at the sheriff’s sales, in 1806, and bid, without mentioning the mortgage, it was held, that the registry of the mortgage was notice to all the world, and that the interest of the mortgagee was not affected by his silence, or bidding at the sale, nor could it be defeated by the sale, under the judgment, subsequent to the registry.

THIS was an action of ejectment. The cause was tried at the Ulster circuit, before Mr. Justice Van Ness, on, the 3d October, 1808.

The lessor of the plaintiff claimed title to the premises' in question, under a purchase made at a sheriff’s sale.

At the trial, an alias fieri facias was produced, issued out of the Ulster common pleas, tested the 20th September, 1806, and returnable the first Tuesday of January,• 1807, directed to the sheriff of Ulster, and in the usual form, for the sum of 75 dollars debt, and 24 dollars 64 cents da

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mages, against Tunis Sammons. Under this execution, the sheriff sold all the right and tide of Tunis Sammons, to the premises in question, for 204 dollars, to the plaintiff, and executed a deed to him, which was produced. Cornelius J.0%0 and Thomas Harris were both present at the sale, and Harris bid twice. Harris did not mention that he had any claim to the property, nor did he forbid the sale. A copy of the judgment on which the execution was issued, was produced, bearing date in July, 1801. The premises were devised to Tunis Sammons by his father.

The defendant produced a bond and mortgage executed by Tunis Sammons to Thomas Harris, for the premises in question, for securing the payment of 84/. dated the 21st March, 1800, and registered the 17th April, 1802.

It appeared, that in the summer of 1803, Sammons and Harris made a settlement of their .accounts together, in which the money due on the bond and mortgage was included, and a balance of about 400 dollars was found due to Harris, who took a lease of the premises from Sammons, for ten years, to pay that sum ; and that an indorsement was to be made on the bond at the end of every year, of the sum agreed on. The bond and mortgage were understood to be in force.

The defendant produced a lease from Harris to him, dated the 28th March, 1805, and the lease from Sammons to Harris, dated the 26th July, 1803, was also produced, under a notice given for that purpose.

On this evidence, the judge directed the plaintiff to be .called, and nonsuited, with leave to move the court to set the nonsuit aside, and grant a new trial.

A motion was made to set aside the nonsuit, on the following grounds:

1. As the mortgage was not registered at the time the judgment was docketed, it must be postponed, and the judgment first satisfied.

2. That Harris, by taking possession of the premises for the first time, in July, 1803, and then as a tenant un

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der Sammons was estopped from claiming the possession as mortgagee.

3. That as Harris was present at the sheriff’s sale, and was silent concerning his claim as mortgagee, he is estopped from now setting up the mortgage.

Hawkins and Fisk, for the plaintiff.

1. The plaintiff, as purchaser at the sheriff’s sale, comes in under the judgment, and acquires all the interest which was bound by that judgment. His title refers back to the time the judgment.^[14] The statute concerning mortgages,^[6] declares, that the mortgage first registered shall have a preference, and that a mortgage not registered, shall not defeat the title or interest of a bona fide purchaser. A judgment creditor ought to be considered and treated as a bona fide purchaser. His lien is perfect. The title of the mortgagee, until the registry, is imperfect. The law gives the lien to the judgment creditor, and if at the time it is created, it has a priority to any other incumbrance, that priority ought not to be defeated by any subsequent acts. If the sale of the premises, under the judgment, had been made prior to the registry of the mortgage, there is no doubt that the purchaser would have acquired a valid title. If the mortgage had been registered at the time, the judgment creditor, knowing the existing of the mortgage, would not have relied on his judgment, but have sought for other security.

2. As Harris took a lease from Sammons, he is estopped from claiming to hold as mortgagee. The plaintiff has a right to avail himself of this estoppel. Every person who becomes interested by act of law, shall be bound by, and may take advantage of, an estoppel.^[6] Estoppels bind both parties or neither.^[8] As Sammons would not have denied lease, neither can Harris. A man shall always be estopped by his own deed, nor is he permitted to prove any thing in contradiction to his own solemn act.^[9] And so far is this principle earned, that if one takes a lease by indenture, of hi s

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own lands, it shall bind him.^[14] So a feoffment enrolled, without livery of seisin, though it has no force to pass the land, yet the feoffor is estopped from saying it was not his deed.^[6] If A. lease land to B. for years, both parties are estopped to say, that the lessor had no title.^[7] If the defendant sets up the mortgage, while the lease is in operation, he must deny that the lessor had authority to make the lease. An estoppel which affects the land, runs with it, into whose hands soever the land comes.^[8] The legal existence of the lease is incompatible with that of the mortgage ; and the lease being the last security, must supersede and dissolve the mortgage.^[9]

If a mortgagee should accept a lease of the premises from the mortgagor, would he be allowed to set up the mortgage in defence to an action of debt for the rent ?

3. As Harris was present at the sheriff’s sale, and concealed his mortgage, it must be considered as a fraud on the purchaser.^[10] In cases of fraud, courts of law have power to afford relief.^[11] If Harris meant to have claimed under the mortgage, he ought not to have attended the sale, or have made known his mortgage at the time.

Sudam, and J. Tallmadge, contra.

A purchaser at a sheriff’s sale stands in the place of the defendant in the execution, and takes his title.^[12] The mortgage was given in March, 1800, and the judgment is in August, 1801. At the time of the judgment, Sammons, as mortgagor, had only an equity of redemption. The judgment could bind no more than the interest of a mortgagor. The execution commands the sheriff to levy on the lands of which the defendant was seised at the time of the judgment. Now, Sammons was at that time seised only as mortgagor, and no more than an equity of redemption could be sold under the execution.

A judgment is not a lien, nor can it affect purchasers or mortgagees, until the roll is filed, and the judgment docketed.^[13] A mortgage is a better security. It is an immediate hen, and, though unregistered,- this lien cannot be defeated

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by a subsequent judgment. This is manifest from the provisions of the statute.

2. The doctrine of estoppel is not applicable to the present case. The lessor is a mere speculating purchaser, five years after the mortgage was duly registered. The paper which has been introduced as a lease, is nothing more than an agreement as to the annual value of the land, of which the mortgagee took possession. The mortgage was in full force at the time. It was proper to fix the annual value of the land, in order that it might be applied to the payment of the bond and mortgage. By the mortgage, Harris acquired a fee-simple at law, and if he took a lease, the greater estate would not be merged.

3. The registry of a mortgage is notice to all the world.^[14] The sale was long subsequent to the registry; Harris, therefore, cannot claim the protection of a bona fide purchaser, without notice. He is a purchaser with full notice.. He, no doubt, speculated, upon the supposition, that the judgment would prevail against the mortgage. Harris, by attending the sale and bidding, could not deceive the plaintiff, because the interest to be sold was no more than that of,, a mortgagor, and the mortgagee had a right to become the-purchaser. There is no pretence for the suggestion of a legal or constructive fraud, arising from the silence of Harris, when the mortgage had been duly registered for several years.

delivered the opinion of the court. The plaintiff having been nonsuited at the trial, has moved to set it aside. The facts are briefly these: Cornelius Low obtained a judgment, in the common pleas of Ulster, against Tunis Sammons, which was docketed on the 5th of August, 1801. An execution was issued on this judgment, dated the 28th September, 1806, and a sale was made by the sheriff thereon, of the premises in question, to the lessor of the plaintiff, and a deed was given on the 10th of March, 1807. Sammons's title to the premises on the 21st of March,

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1800, was unquestioned. On that day, he executed a mortgage to Thomas Harris, of the premises, to secure the payment of 210 dollars, payable 1st April, after date. This mortgage was registered the 17th of April, 1802. At the sheriff’s sale, Harris appeared and bid several times, and gave no notice of his mortgage, nor did he forbid the sale. On the 26th of July, 1803, Sammons gave a lease to Harris of the premises, for ten years, to secure the payment of a balance of 400 dollars, due him from Sammons, and one-tenth of this balance was to be indorsed every year on the bond accompanying the mortgage; when this agreement was made, both parties talked of the bond and mortgage being in force.

A mortgagee is considered at law, and for certain purposes, as the owner of the estate. It has been decided in this court, that his interest cannot be sold on execution,^[1] because it cannot be separated from the debt; and it has been considered as a security for money. Still, however, it cannot be denied, that the mortgagee has the title, so far as to enable him to maintain an ejectment on the mortgage, not only against the mortgagor, but against such as derive title under him, subsequent to the mortgage. The 2d section of the statute concerning mortgages,^[2] gives priority, in case of several mortgages, of the same premises, to the first registered; and it provides that no mortgage shall defeat or prejudice the title or interest of any bona fide purchaser, unless the same be duly registered, according to the provisions of the statute. Before this statute, there was no necessity of registering mortgages; they would have stood upon the same footing as any other lien on real property. Since the statute, they must be registered, or lose their priority, as to junior mortgages, and be liable to be defeated, in case of a bona fide purchaser, prior to the registry. There is nothing in the statute which gives a preference to a judgment docketed over an unregistered mortgage. The judgment being by act of law, does not destroy the lien acquired by an unregistered mortgage, nor gain a preference

* Ante, p. 41. Jackson v. Willard.

† † 1 vol. R. P. 481.

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over it. Should the mortgagee permit a sale to take place, prior to the registry, then, in my opinion, the vendee of the sheriff would be protected from the mortgage, and it would lose its priority. In the present case, the mortgage to Harris had been registered nearly five years prior to the sheriff’s sale. The mortgage being prior to the judgment, and the registry long before the sale, Harris had the legal title to the premises, and the lessor of the plaintiff must be deemed to have had notice of the mortgage when he purchased.

There is no weight in the objection, that by Harris’s bidding at the vendue, he ought to be estopped from disputing the title of the purchaser at that sale. Sammons had a vendible interest in the premises, the equity of redemption. Harris’s bidding, when he had a right to presume every one who bid knew of his mortgage, is not irreconcileable with the situation in which he stood as mortgagee.

The suggestion, that by the arrangement which took place between Harris and Sammons, the mortgage was surrendered, is inconsistent with their declared intentions, and is contradicted by the lease itself; for by that, the existence of the bond and mortgage is recognised. I am satisfied, that the nonsuit was correctly ordered, and that the plaintiff can take nothing by his motion.

Rule refused.