Opinion
Fall Sessions, 1840.
Gray, for plaintiff.
Wales, for defendant.
EJECTMENT. Case stated.
The case stated was, that on the 16th of November, 1815, William Newbold mortgaged a farm, of which the premises in question are a part, to John Newbold, to secure the payment of money. John Newbold assigned this mortgage to George Thomas, who issued a scire facias against William Newbold and terre-tenants, and judgment was rendered thereon; a levari facias issued and the land was sold on the 28th of April, 1828, to Harry Connelly, to whom the sheriff conveyed the same by deed dated the 15th of November, 1828, which deed was duly recorded. Harry Connelly and wife mortgaged the premises by indenture, duly executed and recorded, to George Thomas, to secure the payment of a sum of money; and afterwards, viz: 26th of January, 1829, conveyed a part of the said tract, (one acre and seven perches) to the defendant, Abram Gerry, in fee by deed duly executed and recorded. Gerry went into possession and improved the part so conveyed to him. On the 24th of March, 1834, a scire facias issued at the suit of George Thomas, against Harry Connelly, on the last mentioned mortgage, to which Connelly appeared and confessed judgment. A levari facias issued on said judgment and the whole tract, including the part conveyed to Gerry, was sold by the sheriff to William S. Greiner, and conveyed by deed duly executed and recorded, dated the 8th of August, 1834. Greiner and wife, by indenture dated the 1st of August 1836, conveyed the said land to Thomas Cooch in fee. Thomas Cooch, by indenture of mortgage dated August, 1836, duly executed and recorded, conveyed the land, including the premises in question, to William S. Greiner for the payment of a sum of money, which is yet clue and unpaid. After this Cooch brought his action of ejectment against Gerry, who in his defence set up the title of Greiner, under the mortgage deed of 1836; and the question was, whether the title of a mortgagee out of possession, under an outstanding mortgage, would bar the recovery of the mortgagor in ejectment, against a third person not claiming under the mortgagee.
Mr. Wales, for the defendant, contended that on the conveyance of Cooch to Greiner by mortgage deed, the condition of which mortgage was forfeited, the title of Greiner was complete. That the title to the land was thereafter in Greiner and not in Cooch. That after the condition of a mortgage is forfeited the mortgagee may maintain ejectment for the land. Tie referred to a case of Hinch-man and Barr, said to have been decided in the Circuit Court in the Delaware district, before judges Duval and Hall, to this effect. Mr. Gray, contra, said: — admitting that Greiner could recover in ejectment against Cooch on the mortgage deed; it did not follow that. Cooch could recover from Gerry. A mortgage is a mere security for the payment of a debt, and though it operates as a conveyance as between the mortgagor and mortgagee, and subjects the mortgagor to an action of ejectment to recover the possession at the suit of the mortgagee after condition broken; yet until the recovery in ejectment, the mortgagor, as to all the rest of the world, is the legal owner of the land. A mortgagor is still a freeholder.
Per Curiam:
The question presented for the consideration of the court is, whether the tenant in possession not claiming, under the mortgage, can set up an unsatisfied mortgage against the mortgagor, to prevent his recovering in ejectment. The action of ejectment is a fictitious remedy to try the title to the possession of lands, and should be adapted to attain the ends of justice. The mortgage is regarded both at law and in equity, as a mere security for the debt; and lord Mansfield in the case of the King vs. St. Michael's, (Doug. Rep. 630,) says "it is an affront to common sense to say the mortgagor is not the real owner;" that "the mortgagee, notwithstanding the form has but a chattel, and the mortgage is only a security. In the case of Jackson vs. Willard, (4 Johns. Rep. 43,) it was decided by the Supreme Court of New York, that lands mortgaged could not be sold on an execution against the mortgagee before foreclosure of the equity of redemption, though the debt be due and the estate of the mortgagee has become absolute at law; and in delivering the opinion of the court in that case, Kent, chief justice,, says, "at the time of the sale, the mortgaged premises continued to be real estate in the hands of the mortgagor, and liable to be sold on execution against him. Until foreclosure, or at least until possession taken, the mortgage remains in the light of a chose in action." And in the case of Collins vs. Torry, (7 Johns. Rep. 282,) the court expressly say "a mortgage before foreclosure or entry, is not now regarded as a legal estate, which a stranger can set up. It can only be used by the mortgagee and his representatives." The result of the whole current of authorities is thus stated by Kent in his commentaries, vol. 4, 160. "Except as against the mortgagee the mortgagor while in possession and before foreclosure, is regarded as the real owner and a freeholder, with the civil and political rights belonging to that character; whereas the mortgagee, notwithstanding the form of the conveyance, has only a chattel interest, and his mortgage is a mere security for a debt." The precise point presented in this case has also been decided in the late Court of Errors and Appeals of this State, in the case of Robinson vs. Harriss' lessee.
Judgment for the plaintiff.
J. S. Robinson vs. Jesse Harriss' lessee. High Court of Errors and Appeals. June term, 1818. Ejectment. The plaintiffs, tenants in common, of the lands in question, mortgaged them to one Evans, and afterwards conveyed them to Harriss by deed of bargain and sale. An ejectment was subsequently brought by Harriss, to recover the possession of the premises, and J. S. Robinson set up their mortgage to Evans in bar, c.
Ridgely, chancellor. — The court below was right. 1. The Robinsons were estopped by their deed to Harriss, from setting up their mortgage to Evans; they were barred to aver against their own act. ( Esp. 457.) 2. We recognize Doe ex dem., Bristowe vs. Pegge, (1 Term. Rep. 759,) as sound law, notwithstanding its being overruled in the case of Doe ex dem., Hodgson vs. Staple, (2 Term Rep. 684.) There was no dispute between Harriss and Evans; the latter did not interfere in the suit. Mortgages are, more especially in this State, to be considered merely in the light of securities for the payment of money; the mortgagee is rarely, if ever, put in possession of the land.
Note. — During the argument of this case, the chancellor took occasion to observe that the widow of cestui que trust was, in this State, entitled to her dower; and that the hasty decisions which gave rise to the rule in the English courts to the contrary were disregarded. Godwin vs. Wins-more, (2 Alk. 526.)