Heighway v. Pendleton. IN BANK. proceedings should be controlled by it. The law of a contract, Dec. Term, it is true, cannot be so changed as to impair the force of its 1846. obligation, but the remedy may be moulded into any shape to suit legislative discretion; but there is nothing in the act from which the design claimed is by any means evident, or opposed to the construction to which I have alluded. On sales of mortgaged premises, and lands upon ordinary judgments, there are many reasons why distinctions should not be made in the form of the acknowledgment of the conveyance. Uniformity in the rule of action in similar cases, prescribed for ministerial officers, conduces to accuracy and regularity, and diminishes the chances of confusion, lessens the probability of error, gives stability to judicial proceedings, and security to rights and interests acquired under them. By the act of 1805, the sheriff was authorized to acknowledge deeds before a Justice of the Peace. This deed is so acknowledged, and we hold it to be sufficient, without an acknowledgment in open Court, and find no serious difficulty in supporting this judicial sale throughout. This, alone, is decisive of the case. It is supposed, however, that the judgment on the mortgage of 1798, will not sustain the proceedings had under it, for the reason, that it had but a single witness. If this were a defective execution of it, advantage should have been taken on the return of the sci. fa.; but, though personal service was made upon the writ, on the administratrix, judgment was permitted to be obtained. But this was not all. This judgment was, afterwards, revived, and no objection taken to the original judgment on this ground; and if the objection could, at any time, be made available, that time was permitted to pass by, and the door is now closed against it. But admitting the mortgage was defective, it cannot for a moment be claimed the judgment founded upon it was void. It was merely erroneous, and, until directly attacked and reversed, is equally available to sustain a sale made under it, as if it were not liable to such objection. Heighway v. Pendleton. Dec. Term, 1846. There is another point in the defence equally fatal to any IN BANK. right of recovery by the plaintiff. The mortgage of 1796 covered the entire premises described, except lot 409, which is not in controversy. This mortgage was well executed, though the mortgage of 1798 had but one witness. Jesse Hunt took possession, under his sale, upon both mortgages. He got peaceably into the possession, which possession, the defendants claiming under him have since enjoyed by virtue of his title. John Mercer being in life when the mortgage of 1796 became absolute, the legal title, as between the parties, passed to Jesse and Abijah Hunt, and it remains there until the mortgage is satisfied. If, therefore, the proceedings under the sale are invalid to pass title, there is no satisfaction of the mortgage, and the defendants hold this legal title of their ancestor, Jesse Hunt; and, in this view of the case, there is nothing in the plaintiff but an equity of redemption, and her only remedy is by bill in chancery, to redeem. To avoid this aspect of the case, a compromise is relied upon, between Hunt and the administratrix, by which portions of the land, not now in controversy, were relinquished to her, and this in dispute, with others, retained, and that a release was then executed by Hunt from all mortgage demands. It is urged that the administratrix, mother of the plaintiff's lessor, could not bind her by any such agreement, and that the plaintiff's lessor may discard the whole consideration to Hunt, for the execution of the release, and hold on to the release, as a satisfaction and merger of the mortgage. This would be playing fast and loose with a vengeance, and a proposition so monstrously unjust cannot for a moment be entertained. The compromise was an entire transaction, and if good in part, it is for the whole. But had not the administratrix the perfect right to enter into that compromise? The plaintiff's lessor never had any legal title in the premises, without the compromise, or with it, so far as this controversy is embraced. Her father was in esse when the mortgage became absolute; the legal title passed, therefore, to the Hunts, and not to her by descent east. An Dec. Term, 1846. Heighway v. Pendleton. IN BANK. equity of redemption was not, then, considered as a chattel real, descendable to the heir, but as personal, to be controlled by the administratrix, and for this reason, the law in force at the commencement of these suits, authorized, after condition broken, a sci. fa. to be issued and served on the administrator.Where, then, is even the equitable title of the plaintiff's lessor? Many other points have been made in the case, by the learned counsel on both sides. They have been examined, though not alluded to in this opinion. In this, like most cases which swell to an enormous bulk, when examined, it is found to turn upon either of two or three points, and the numerous ones, besides, which are put forth, are merely skirmishes to ward off the attack from the main body. Allusion, in the argument, has been made to the character and conduct of Jesse Hunt; but, after the most careful examination, we find nothing in the case inconsistent with the strictest integrity, honesty, and even liberality, in his dealings with the ancestors of the plaintiff's lessor, in this whole transaction. We think no substantial error intervened, on the trial, to warrant this Court in interfering with the verdict; and, indeed, upon the whole case which has been considered, that the plaintiff is not entitled to recover. Motion Overruled. READ, J. dissenting. I cannot concur in the opinion just pronounced. The material facts appear to me to be briefly as follows: John Mercer, on the 10th of June, 1796, mortgaged to Jesse A. Hunt, a fractional lot, 201, in Cincinnati, outlot 29, a fractional part of an outlot adjoining, and, also, outlot 28, to secure the payment of $720, with interest, on or before the 10th of September then next. On the 10th of February, 1798, John Mercer executed another deed, to the same parties, purporting to be a mortgage of fractional inlot 409, outlot 29, the fractional lot adjoining the same; also, outlot 28; also, a military warrant, to secure the Heighway v. Pendleton. Dec. Term, payment of $320, with interest, on or before the 13th Febru- IN BANK, ary then next, The instrument was not acknowledged, and was attested by one witness only.. John Mercer died in 1806, leaving an only daughter, (the lessee of the plaintiff,) his heir at law. She married John Heighway in 1812, and he died in 1828. In the year 1808, the mortgagees caused two writs of scire facias, on the mortgages, to be issued against Susan Mercer, the widow and administratrix of John Mercer. The writ on the so called mortgage of 1798 is without a seal. Two judgments were rendered by default, not adjudging the mortgaged lands to be levied upon and sold, but adjudging the defendant to pay the respective sums of $1,232.58, and $473. Writs of execution were issued, commanding the sheriff to levy upon all the lands and goods which belonged to John Mercer. The sheriff accordingly levied under the judgment for $1,232.58, part of the property included in the first mortgage, namely, inlot 201 and outlot 28, and sold the same for $400. Under the other judgment, for $473, the sheriff returned that he had levied on inlot 409, on number 29, on a fractional outlot, and on outlot number 8, and had sold the same for $200. The returns are merely "made $400," "made $200." No. 8 was not mortgaged. A conveyance was made by the sheriff to Jesse Hunt, dated 5th November, 1811, which was set up as a conveyance under the judgments, executions, and sales above mentioned. It recites a judgment rendered by the Court of Common Pleas of Hamilton county, in December term, 1810-not the two judgments rendered in April term, 1808. It was not acknowledged in open court, and the attestation was not thus, "sealed and delivered in presence of." Sometime after this deed had been executed, a dispute arose between Jesse Hunt and Susan Mercer, the latter insisting the purchase had been made for her benefit by Jesse Hunt, as her trustee. Mrs. Mercer retained possession with her daughter 1846. Heighway v. Pendleton. Dec. Term 1846. IN BANK. until the year 1815, when the dispute was compromised by Jesse Hunt's taking part of the property, and the widow Mercer the remainder. The lessor of the plaintiff joined with her husband and mother in a conveyance to Jesse Hunt of the property now sought to be recovered, but the lessor of the plaintiff was not separately examined as a married woman; and she denies that the compromise was binding upon her, and insists that the proceedings against her mother are of no effect. In 1818, a bill was filed by Mrs. Mercer, and Mr. Heighway and his wife, to be relieved from the deed of 1815, on the ground that it had not been drawn up according to the compromise; and that Jesse Hunt had violated the compromise by setting up claims to the mortgage money which had been released on the compromise. Relief from the sheriff's deed was also prayed, on the ground of fraud; but as the bill was dismissed, at defendant's costs, without any reason being assigned for such dismissal, it is apparent that the attack upon the deed of 1815 failed, and consequently the other matters charged in the bill could not have been litigated. The deed of 1815 was binding on the complainants in that suit. In 1823 the judg ments were received like ordinary judgments, for the purpose of obtaining common executions for the collection of the balance claimed to be due. The administratrix put in pleas in those proceedings. The administratrix having claims upon the estate, applied to the Probate Court for an order to sell land, namely, outlot 36, to pay debts. Jesse Hunt filed a bill in chancery, in 1824, to enjoin this sale, and claiming a balance to be due to him upon the mortgages. To this bill Susan Mercer answered, under oath, that some time after her husband's death, Jesse Hunt advised her to have the mortgaged property sold under execution, and promised to attend the sale as her agent, and bid off the property for her; that after the sale, she made payment on the mortgages and paid the taxes. The particulars of the compromise are also set forth. In 1830, the bill was dismissed with costs, the balance claimed by Jesse Hunt having been settled by the conveyance of a piece of property to N. G. Pendleton. |