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Lessee of Fosdick v. Risk.

1816.

the mortgagor. He may obtain a judgment upon the note and In Bank.

Dec. Terin, cause the same levy and sale to be made as any other creditor.' The amount made, if sufficient to pay the debt, will destroy the pledge if not sufficient, will reduce the lien pro tanto only.

The only effect of the proceedings, is to pass the right and title of the defendant in the action.

“ The mortgage remains an incumbrance on the lands, and may be asserted against the purchaser.” Seymour v. King, 11 Ohio Rep. 342.

“ The interests of mortgagees are not affected.” Per Cur. Canton Bank v. Commercial Bank, 10 Ohio Rep. 73...

The judgment does not supersede the mortgage. The mortgagee may take a higher security for the mortgage debt, as a recognizance for a simple contract, and this will not discharge the lien of the mortgage. Davis v. Maynard, 9 Mass. Rep. 247.

A judgment may destroy lower remedies, but it cannot deprive a man of an interest in lands. Even if a mortgagee, after obtaining judgment for his mortgage debt, proceeds to commitment of the mortgagor in that suit, he may still have a remedy upon the mortgage. Davis v. Battine, 2 Russ. & M. 76; and see Cary v. Prentiss, 7 Mass. Rep. 63.

Jackson ex dem. Ireland v. Hull, 10 Johns. Rep. 481. “A creditor who takes a mortgage to secure a debt, by bond or otherwise, has three remedies, either of which he is at liberty to parsue, and all of which he may pursue, until his debt is satisfied; he may bring an action of debt upon the bond, or he may put himself in possession of the rents and profits of the land mortgaged by means of an ejectment, or he may foreclose the equity of redemption and sell the land to satisfy the debt.

“ If a creditor, having obtained judgment on his bond, issue an execution by which the mortgaged premises are taken in * execution, and sold to a person who has notice of the mort

gage, and of its being unpaid, it will be deemed a sale merely

Lessee of Fosdick v. Risk.

Dec. Term

In Bank. of the equity of redemption or interest of the mortgagor,

so that the mortgagee may bring an action of ejectment against 1846. - the purchaser to recover the possession.

« And the mortgage interest is no further touched by the sale, than that the purchase money of the equity of redemption may go to diminish the amount of the debt.

The sheriff's deed, in the present case, if it passed any thing, (which we deny,) was a conveyance of the land, subject to the mortgage debt. That debt was only partly satisfied with the purchase money, the mortgage debt being $1,360, the purchase money #867.

The mortgagee being in possession, with a part of the debt unpaid, he cannot be ejected. 15 Wend. 248. · It is argued by plaintiff's counsel, that the sheriff sold and conveyed the titles of both plaintiff and defendant under the authority of the writ authorizing him to sell the estate of the latter. And yet it is conceded, that upon a levy and sale under a judgment obtained by an ordinary creditor, the purchaser gets nothing but the title of the debtor. And that is so, although the land is valued without regard to the mortgage.See Seymour v. King, 11 Ohio Rep. 342. No reason is given for the suggestion that the mortgagee has not the same rights as any other creditor when he, the mortgagee, obtains judgment on a note for the mortgage money. On this judgment, the plaintiff has a right to pursue all the debtor's property as if he, the plaintiff, held no pledge or security for his claim.

We see no reason for the opinion of plaintiff's counsel, that " there is an important distinction in the Ohio system from all others." In other States, as well as in this, there are appraisement laws, and the rule also prevails, that the mortgagor is the real owner subject to the debt.

In those States, as well as in this, the purchaser on execution against the mortgagor takes subject to the mortgage. That is conceded to be so when an ordinary creditor obtains a judgment, levy and sale of the mortgaged property, and we cannot perceive the slightest distinction between such ordinary creditor

Lessee of Fosdick v. Risk.

and a mortgagee suing on a promissory note. None has been In Bank.

Dec. Term, pointed out by plaintiff's counsel.

1846. If we examine the sheriff's authority, we shall find that it was not possible for him, in this case, to convey any thing more than the debtor's interest in the land ; and that was subject to the mortgage debt. The mandate of the writ of execution was confined to the debtor's interest. The writ commanded the sheriff to make the debt of the goods of Huddart; and if they were insufficient, that " he should cause the same "to be made of the lands and tenements of the said George · Huddart.

The sheriff could not convey the right and title of the plaintiff in the action as a pledgee, or lien-holder, under the mortgage.

Upon an ordinary judgment and execution, the sheriff cannot sell the land discharged from the mortgage debt; he can only put the purchaser in the place of the mortgagor. It is a proceeding altogether dissimilar from a sale upon a scire facias on a mortgage, or upon a decree in a foreclosure suit, and yet plaintiff's counsel ask the Court to confound it with those proceedings.

If the purchase money be sufficient to satisfy the debt, the mortgage title may be extinguished, but not otherwise. .

Nothing more passed in the present case than would have passed if any other creditor of Huddart had obtained judgment, levied and sold.

Whether the parties supposed that the sheriff could convey the land so as to make a complete title, free from incumbrance, is immaterial.

As to the alledged estoppel.

It has been argued by defendant's counsel, that where a mortgagee obtains a common judgment, and levies upon the mortgaged lands, and causes the same to be sold to a bona fide purchaser, such mortgagee cannot be permitted to assert that there was, in fact, no estate or interest capable of being levied upon and sold at common law.

Lessee of Fosdick v. Risk.

In Bank. There are two answers to this argument . .
Dec. Term,

" First: Even if there would be such an estoppel in favor of 1846.

a bona fide purchaser, believing and acting upon a representation of the mortgagee, that the mortgagor was actually in possession when the levy and sale were made, there is no such estoppel in the present case, because no bona fide purchaser has been deceived by any representation.

There is no ground for saying that plaintiff was deceived in any way by a misrepresentation of a matter of fact not within his own knowledge.

To create an estoppel, there must be " an admission intended to influence the conduct of the man with whom the party is dealing, and actually leading him into a line of conduct which must be prejudicial to his interest, unless the party estopped be cut off from the power of retraction. This I understand • to be the very definition of an estoppel in pais.” : Per Cowen, J. in Dazell v. Odell, 3 Hill, 219.

Jackson v. Waldron, 13 Wend. 178, shows the principle of an estoppel. It is to prevent circuity of action " a party as

serting a fact, and thereby inducing another to contract with him, cannot, by a denial of that fact, compel the other party " to seek redress against his bad faith, by suit.”

The evidence in the present case shows that there was no false and fraudulent representation made by Risk to Fosdick, whereby the latter was deceived and defrauded. There is, therefore, no estoppel.

Second: Risk did not represent that Huddart was in possession. He may have supposed that, that fact made no difference. But that supposition cannot affect the case. The facts were well known to all the parties.

An admission by the party of what the law is, has no effect, and is never noticed ; 2 Phil. Ev. Cowen’s notes, 211; Polk's Lessee v. Robinson, 1 Tenn. Rep. 463. So of the legal effect of his contract; Boston Hat Manufactory v. Messenger, 2 Pick. 223. So where a man voluntarily, and without consideration, agreed in writing to convey land to another, and often

Lessee of Fosdick v. Risk.

1816.

admitted that the land belonged to the other, held for nothing, in BANK, for the right depended on a question of law; Leforce v. Roh- Dec, inson, Litt. sel. cas. 22-3. An estate cannot be defeated, re-: leased nor extinguished by a mistake of opinion, or confession of law, or expressions of intentions not to prosecute the right; Craig v. Baker, Hard. Rep. 281, 283, 284, 289. Admissions under a misapprehension of legal right, are unimportant.Moore v. Hitchcock, 4 Wend. Rep. 292, 298, 299; And see Williams v, Champion, 6 Ohio Rep. 169; Bigelow v. Barr, 4 Ohio Rep. 358; Murray v. Palmer, 2 Sch. & Lef. 474; 1 Phil. Ev. 377; Owen v. Bartholemew, 9 Pick. 250.

Upon the execution of defective deeds, the grantor may suppose they are sufficient to pass the title, but that supposition is of no consequence. A conveyance of land not executed and acknowledged, as required by law, will not pass the legal title, although the grantor afterwards, expressly declares that the conveyance shall have that effect.

The supposition of the parties in the present case, that the sheriff could levy upon mortgaged lands not in the possession of the mortgagor, and that he could thereupon sell and convey the estate of the plaintiff as well as that of the defendant, would not (if such supposition existed,) make the least difference.

We submit, that the defendant is entitled to judgment on the verdict in his favor.

HITCHCOCK, J. The facts stated in this case show that Risk, the defendant, held a note secured by mortgage, against Huddart, for thirteen hundred dollars. That he commenced suit upon this note, and recovered a judgment. That he took out execution upon this judgment, and caused the same to be levied upon the mortgaged premises, which were sold to the lessee of the plaintiff; Risk at the time of the levy and sale being in possession of those premises. , The question arising upon these facts, is, as to the nature of the title acquired by the purchaser. It is claimed by counsel for defendant, thật

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