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Lessee of Fosdick v. Risk.

IN Bank. Dec. Term,

A. N. Riddle, and Corry & Russell, for Defendant.

1846.

The facts natural to the decision, are as follows:

Plaintiff put in a deed from Thomas Risk, the defendant, to George Huddart, dated 18th March, 1820, conveying the land in question. (The attestation to this deed is, “ sealed and delivered in the presence of” two witnesses.) .

Also, a transcript of the record of a judgment rendered in the Court of Common Pleas of Hamilton county, on 15th May, 1822, in favor of said Thomas Risk against said George Huddart, for the sum of $1,356.76, and $11.95 costs.

Also, that on the 19th June, 1822, execution was issued, and that on the 24th of the same month a levy was made on the growing crops of the said George Huddart, then on the land in question, and that on 6th July, 1822, the sheriff sold the same for $14.50, then indorsed nulla bona on the writ, and on the 2d August, 1822, levied on the land in question.

That, on the 10th September following, the sheriff sold the same to said Samuel Fosdick (lessor of the plaintiff,) for $867; which sale was by the Court at the September term of the same year confirmed, and a deed was ordered.

Plaintiff also produced a deed purporting to be made by Richard Ayres, sheriff of Hamilton county, in pursuance of said order, to Samuel Fosdick, dated October 20th, 1822, and recorded 15th March, 1626.

The defendant then proved a mortgage made of said premises by said George Huddart to defendant, dated 18th March, 1820, recorded 12th September, 1821, to secure the payment of $1,300, to be paid in one year as the balance of the purchase money due on Huddart's purchase from defendant.

The defendant also proved by his sons, that after the levy had been made on Huddart's personal property, and before the levy was made on the land, to wit, some time in the month of July, 1822, said George Huddart agreed to give up the land in question to the defendant for the mortgage debt. Huddart

Lessee of Fosdick v. Risk.

ec. Term,

accordingly relinquished possession, and the defendant entered In BANK. immediately – was in possession when the levy was made, and De

1846. has remained in possession ever since.

Plaintiff also proved, that Thomas Risk told Samuel Hartley, in 1822, that he had bailed a man who got goods at Mr. Fosdick's store, and had mortgaged the place to pay him.

The defendant called Hugh Moore, who proved that shortly after the death of Richard Fosdick he went with defendant to the plaintiff. He said that he was glad to see defendant; that he wanted to have it understood how he held the land ; that he, Fosdick, had mortgaged it, but that the mortgages were then off or paid ; that there had been a mortgage in

1816 to Richard Fosdick to secure a debt of seven or eight hundred dollars, and he, Samuel, now held the title to secure the debt. This witness' testimony also shows, that Samuel Fosdick paid nothing on the sheriff's sale. .

There was evidence tending to show, that the purchase at the sheriff's sale was made for the benefit of the defendant, who would not purchase the property in his own name, because he owed several small debts, (since paid off.)..

The jury rendered a verdict for the defendant, under the direction of the Court.

Huddart was not in possession of the mortgaged land when the levy was made.

A mortgaged estate is not liable to execution upon a judgment against the mortgagor when the mortgagee is in possession. Plaintiff's counsel contend that the mortgagor is the legal owner, although the mortgagee is in possession. We admit that to be so; the mortgagee holds only a pledge at law, as well as in equity, and he holds no more when he is in possession. But the general rule is, that, although the pledgor is the real owner, subject to the debt, the property pledged cannot be taken in execution under a judgment and execution against the pledgor.

Story on Bailments, s. 353.—“Goods pawned are not liable to be taken in execution in an action against the pawnor ; (at least, not unless the bailment is terminated by payment of

Lessee of Fosdick v. Risk.

In Bank. "the debt, or by some other extinguishment of the pawnee's

Dec. Term,

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Upon a common law execution, the sheriff can only levy upon such property as the debtor may possess, or have a right to possess, and the possession of which can be transferred by the sheriff to a purchaser. For this reason, property pledged cannot be levied upon, although it may be in the hands of the debtor, for he holds only at the mere will of the pledgee, who has the right to the possession.

It is true, that this rule lias been relaxed so as to allow a levy upon mortgaged lands, when in the possession of the mortgagor. The plaintiff, in the present case, asks for a further relaxation of the rule, so that a levy may be allowed when the land is not in the possession of the debtor, but is held by the morgagee.

According to Seymour v. King, 11 Ohio Rep. 342, no fair sale can be made upon an execution at common law, upon lands mortgaged, wherefore, it is right to abandon a levy on such lands. The Court say: “ A Court of Equity is the only proper tribunal to adjust the interests of all parties.” . We submit, that the rule forbidding a levy upon property pledged ought not to be further relaxed. We do not say that the mortgagor has only an equitable interest; we hold that he has, like the pledgor of chattels, a legal right, and is, both at law and in equity, the real owner. At common law, the pledgee may sell the pledge, when there has been a default in the pledgor. “Such a right does not divest the general property of the pawnor.” Story on Bailments, sec. 308; and see sec. 307..

A pledgee of chattels may file a bill in chancery against the pawnor, for a foreclosure and sale, (Story on Bailments, sec. 310,) not because the pawnee has no legal right, but because it is equitable and just that he should be prevented from exercising his legal right to redeem, after unreasonable delay.

A bill to foreclose a mortgage, or pledge, does not assume that the defendant has only an equitable right. The Court act Lessee of Fosdick v. Risk.

upon the legal right to redeem, and compel its exercise within In Bank.

Dec. Term, a reasonable time.

1846. All rights which are not the subject of a common law exe- — cution, may be reached in chancery ; hence, the rights of a pledgor of lands or goods may be there subjected to the payment of such pledgor's debts.

When the pled gee is in possession, a common law execution cannot reach the property.

The deed from Risk to Huddart did not pass the title.*

We will assume in the first place, for the sake of argument, that the attestation to a deed need not, under the statutes of this State, show that the deed was signed, &c., but that the attesting witnesses may be called to prove the fact.

It surely will not be contended that the signature to a deed for the conveyance of land proves itself, unless the deed be ancient and the possession has been consistent with it.

If the signature does not prove itself, the next question is, whether it is proved by an attestation, thus: “sealed and delivered.” We concede, that if the attesting witnesses put their names without specifying the acts done in their presence, it may be assumed that they have adopted the testimonium clause, “In witness whereof, the said (grantor) hath hereunto set his hand and seal the day and year first above written.” The words, “in the presence of A. B. and C. D.” would be an adoption of this clause, and so would the mere subscription of the names of the witnesses. Not so, however, an attestation specifying what was done, and omitting an essential particular.

In the present case, the handwriting of the attesting witnesses was proved, but they do not say that the deed was signed. Unless, therefore, the signature proves itself, the due execution of this deed has not been established.

The defendant is a mortgagee in possession.

The judgment against Huddart did not prevent him from relinquishing the possession.

* This was the objection taken on the circuit, but, by mistake, the objection was, in the argument in this Court, applied to the sherift 's deed instead of the deed to Huddart.

Lessee of Fosdick v. Risk.

1846.

For

IN Bank. A mortgagor, or pledgor, is entitled to the possession of the
Dec. Term,

m, property pledged. That being so, if he can obtain the posses

sion peaceably, without judicial proceedings, he has a perfect
right so to do.

This right is recognized by the statute relating to executors
and administrators; Swan's Stat. 350, sec. 67. “If the mortga-
gee, or assignee, shall not have obtained possession of the
mortgaged premises in his lifetime, his executor or adminis-
• trator may take possession thereof, by open and peaceable entry,

or by action in like manner as the deceased might have done
if living.”

The mortgagee may give notice to tenants in possession of
the mortgaged premises to pay the rents to him.

A judgment obtained against the mortgagor after the execution of the mortgage, will not deprive the mortgagee of his right thus to obtain the possession.

The mortgagee has the rights at law and in equity to the possession by title paramount to the lien of the judgment, and having that right, the mortgagor ought to relinquish the possession when it is demanded — he ought not to resist the just claim of the mortgagee and compel him to resort to courts of justice to obtain his rights. The judgment lien cannot, in any manner, prejudicially affect the undoubted right of the mortgagee to the possession of the property pledged. A mortgagor is properly called a tenant at will to the mortgagee, because the latter has the immediate right to the possession, but when he obtains it he may be called tenant at will to the mortgagor, as the possession may be terminated in an instant by payment of the debt.

As to the effect of a levy upon and sale of mortgaged lands upon an ordinary judgment against the mortgagor.

A sale of the mortgaged land upon execution against the mortgagor, cannot affect the mortgagee's title as pledgee - the purchaser takes subject to the pledge.

A mortgagee hạving a note for the debt as well as the pledge, may proceed upon the note like any other creditor of

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