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Lessee of Fosdick v. Risk.

Dec. Term,

1846.

lien, so as to cut off or supersede all intermediate rights ac- IN BAnk. quired before the sale, and after the lien began. "The pur'chaser at sheriff's sale acquires all the right, title and interest in the land, which the debtor had at the commencement of 'the judgment lien; is vested with the rights of the creditor, 'entitled to the same relief, and can protect his title against the 'frauds of the judgment debtor in the same manner, and to the same extent that the judgment creditor might have done, had 'he purchased;" 3 Ohio Rep. 530; 5 Ohio Rep. 55; 9 Ohio Rep. 185; 10 Ohio Rep. 404; 11 Ohio Rep. 243. The purchaser's title relates back to the commencement of the judgment lien, so as to defeat and cut down all rights acquired from or against the judgment debtor after the judgment lien attached.

He does not get a mere lien, but title at law, so as to overreach alienations by the judgment debtor. If the mortgagee desire to overcome this right of the purchaser, he must do it through the agency of a Court of Chancery, and not by private. tampering with the mortgagor. His rights are not impaired by the judgment lien; but the mortgagor's control over the mortgage estate is limited and restrained by it. So long as no intermediate rights intervened, the law permits him to do as he pleases with his own; but, so soon as such rights spring up, to the extent of those rights his power over his lands is struck down, and passes to another.

But let us view this subject in another aspect. We have already seen, that lands held by legal title, coupled with an interest, are subject to judgment liens, levies and sales. The legal title to mortgage lands, while in the possession of the mortgagor, is in him, and the lands are bound by judgments against him. When the possession has been shifted to the mortgagee before foreclosure, the legal title still exists, and remains in the mortgagor, or passes to the mortgagee, and is bound by judgments against the one or the other. The mortgage is the mere security for the debt, and only a chattel interest; and, until foreclosure by a decree, the mortgagor continues to be the real owner. The mortgagee has but a qualified possession

Lessee of Fosdick v. Risk.

IN BANK, and interest. He holds, the better to secure his debt. The Dec. Term, 1846. mortgagor has something more than a mere chattel. He has a descendible, devisible and alienable estate. Except as against the mortgagee, certainly, while in possession and before foreclosure, he is regarded as the real owner and a freeholder, with the civil and political rights belonging to that character. No advantage can be taken of the breach of the condition; and he is not barred, independent of a foreclosure, except where the lapse of time, in analogy to the statute of limitations, works an actual transfer of the title. The mortgagee may use his mortgage and remedies to enforce payment, but nothing else. Even after forfeiture and possession taken by the mortgagee, the mortgagor is viewed as the sole owner, and can compel the mortgagee, as his agent, (not trustee,) to account for rents and profits, and relinquish his lien when the end is accomplished. In a word, the mortgagor is viewed as the sole owner of the mortgage land, as well after forfeiture as before he executed the mortgage. And the mortgagee has rather a power, than an interest or an estate, which he can use only to collect his debt, or enforce the duty the mortgage was intended to secure. 13 Conn. Rep. 572.

There is still another view to be taken of this case. The defendant caused the premises in question to be levied upon and sold as the property of Huddart. Having done so, and having applied the proceeds to his own use, he is now estopped to deny Huddart had title in the lands sold. In 2 Ohio Rep. 510, the Court held it to be an established principle, that if a person, having a right to an estate, permit or encourage a purchaser to buy of another, the purchaser shall hold it against him. Under this rule the defendant would be concluded. The sale was made at his instance and under his order. The purchaser took the title at his request, to hold for such uses as he then directed, or he took the title at his request, and paid his money. By no rule of common honesty could he be permitted to thus act, or to draw from a purchaser the fair price of the land sold at his instance, and then take the property from him

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Lessee of Fosdick v. Risk.

Dec. Term, 1846.

by the assertion of a paramount title or mortgage. Could he, IN BANK. upon the judgment on his note, have sold but the residuum, subject to his mortgage, then he would not have subjected the same, but a different interest, and it would not be unjust for him to proceed. But when he sells the very thing mortgaged under the judgment upon the note, precisely as he would under a proceeding on the mortgage, it is not too much to say, he has made his election; he has extinguished his mortgage, and cannot again set it up.

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The case in 9 Cowen's Rep. 274, bears upon that now under consideration. There the officer was shown property by A, as belonging to B. It was levied upon, and sold as B's. A afterwards sold it as his, but was held in an action against him to be estopped by his act in showing the property as B's.

So, also, does the case in 2 B. Mon. Rep. 256. The Court say: "The principle on which the plaintiff's right of recovery depends, is this, that the possession of the execution debtor is 'sufficient evidence of such title in him as authorized the sheriff to levy upon and sell the land; and that, although when possession is the only fact relied on by the purchaser as evi'dence of such a title in the debtor as was subject to levy and 'sale, the latter may show that he had not such title, but a 'mere equity, he will be deprived of the benefit of this fact, ' and estopped to deny the title of the purchaser, if it be shown that the levy and sale were made with his assent, and espe

cially if made under the supposition (as would be presumed in the absence of proof) that he had the legal title." And the Court further say, if the defendant assent to the sale, or if he direct the sheriff to levy upon the land and sell it, or, being present at the sale, did not unequivocally dissent, or disclose the nature of his title, he is to be regarded as having assented to the sale, and as being estopped from denying the title of the purchaser holding the sheriff's deed. If you place a plaintiff in execution in the like category, common honesty and good faith require that he also should be estopped.

IN BANK.

1846.

Lessee of Fosdick v. Risk.

So in the case, in 2 J. J. Marsh. Rep. 33, where a mortgagee Dec. Term, stood by and heard the title of the mortgagor to the premises sold, represented by the sheriff as valid when offered for sale on execution, and permits a bidder to purchase, concealing his mortgage-and especially if he be plaintiff in the execution-he is guilty of fraud, and the purchaser will be relieved. So, also, when property is sold by the interference or express order of the plaintiff, on execution, to satisfy his debt, he is responsible to the bona fide purchaser, if it shall turn out the property belonged to another.

So, in 2 A. K. Marsh. Rep. 356, it is held that a party, who consents to the revival of a judgment in the name of another as executor, is estopped to deny that he was executor.

So, where one admits title to be in another, he cannot assert title against his admission, (12 Wend. Rep. 57,) unless he acted under a mistake, (7 Wend. Rep. 401; 2 John. Cases, 353,) and corrects it before his admission has been acted upon. So, if a man take a lease of his own land, he is estopped from setting up his original title; 12 John. Rep. 357; 1 Hild. Dig. 142, $28; 5 Pick. Rep. 127; 2 Dana Rep. 443; 4 Mon. Rep. 400. The rule is the same when he directs the lease to be made to another; 12 John. Rep. 357. So, when one receipts to an an officer for goods, as the property of the defendant in execution, he cannot claim them as his own; 3 Hill Rep. 215; 9 Cowen Rep. 274; 4 Metcf. Rep. 381. So, if a plaintiff cause an officer to neglect his duty, he shall not complain. 1 Hill Rep. 275. So, when a party confesses a judgment, he is estopped to gainsay it; 9 Paige Rep. 137; 10 Ohio Rep. 162. So a deed, fraudulent as to creditors, binds parties and privies; 10 Ohio Rep; 167; 7 Ohio Rep. pt. 2, 71. So, when a plaintiff causes an equity of redemption to be levied upon, and buys, he cannot deny the mortgage; 3 Dana Rep. 349. So, one assigning dower in his own lands, is estopped to say they are not subject to dower; 23 Pick. Rep. 88. The whole of this matter resolves itself into this: if one be silent, where he should speak, afterwards the law will compel him to remain

Lessee of Fosdick v. Risk.

Dec. Term,

1846.

silent if he would speak. 3 Hill Rep. 389; 5 Dana Rep. 55. IN BANK. If one will cause his own lands to be taken in execution and sold, and title confirmed to the purchaser, and receives the purchase money, he cannot claim title against the purchaser. He is estopped by his own acts. If he sell and convey lands, he will not be permitted to assert title against his deed; 16 John. Rep. 110, 201. Nor will he be permitted to say the lands were not his; 1 John. Cases, 90. So, when the maker of a note admits it to be good, or is standing by, and permits it to be sold without objection, he is estopped; 19 Wend. Rep. 557; 21 Wend. Rep. 94, 172. So, where one, entitled to the services of another, without objection permits a third person to obtain the same, he is concluded, and cannot assert his right; 6 Wend. Rep. 426. So, where an attorney appears in a cause, he cannot deny his authority; 8 Cowen Rep. 253. So a purchaser's title cannot be disturbed by one who encouraged him to make the purchase. 14 John. Rep. 446.

In the view of the principle involved in all these cases, which is identical—that is, if one by his instrumentality occasions another to pursue a line of conduct that he otherwise might not have pursued, he shall not afterwards be permitted to change his original position, so as to affect the rights of the party thus operated upon it seems to me the law will not permit a plaintiff in execution to claim land which he has caused to be sold as the lands of the defendant. Risk caused these lands to be taken in execution and sold. If he then claimed title, he should have prohibited the one, and stopped the other. But, having permitted the land to be taken in execution, appraised and sold, and then the sale to be confirmed in Court, every consideration requires he should not be permitted to defeat a title that has thus passed to the purchaser at his instance, and from which he has reaped the fruits of his execution.

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