Kirkham & Woods v. Dupont

Baldwin, J. delivered the opinion of the Court—Field, C. J. concurring.

Eodman Gibbons was indebted to Freaner and Johnson, by note; to secure it, Eodman Gibbons and William P. Gibbons executed a joint mortgage upon a tract of land held by them in common. Afterward, Eodman Gibbons and one Lamott, his partner, became indebted to Henry Dupont and Alexis Dupont, in the sum of about sixteen thousand dollars, for which they made their note; and to secure it, Eodman Gibbons executed to the Duponts a mortgage upon his undivided interest in the tract of land embraced in the prior mortgage to Johnson and Freaner. This note to Johnson and Freaner not having been paid, they brought suit to foreclose the mortgage, but failed to make the Duponts parties to it. The mortgaged premises were sold under decree of foreclosure, and Johnson and Freaner became the purchasers ; they took the Sheriff’s certificate, and subsequently the deed. The mortgaged property not having satisfied the decree, a personal judgment was rendered against Eodman Gibbons for the deficiency. After obtaining the deed, Freaner and Johnson conveyed the premises, and assigned the unsatisfied judgment against Eodman Gibbons to the plaintiffs, Kirkham & Woods. The parties brought this suit against Henry Dupont, as surviving partner, and as Administrator of Alexis Dupont, setting up in the complaint these facts, and praying that the Duponts be barred of their equity of redemption. The answer admits the facts, and avers that the debt of sixteen thousand dollars from Gibbons & Lamott is due and wholly unpaid; and the defendants offer to redeem the premises, and pray to be subrogated to the rights of the plaintiffs in respect thereto. The District Court entered a decree allowing the defendants to redeem the whole mort[564]gaged premises, on paying the whole mortgage debt, interest, and costs, and all taxes, etc. and subrogating the defendants, in case of redemption, to all the rights of the plaintiffs in respect to the mortgaged premises, and the unsatisfied judgment against Rodman Gibbons. The decree directs, also, that if the redemption be made, the Sheriff’s deed to Freaner and Johnson be set aside, and that the plaintiffs assign the judgment held by them to the defendants. From this decree the plaintiffs now appeal.

We have read attentively the argument of the Respondents’ counsel, but it seems to us to be more ingenious than solid. It has been seen that Wm. P. Gibbons mortgaged his undivided interest in the land in question, as security for the payment of the debt represented -by the note of Rodman Gibbons to Freaner and Johnson. Upon what consideration Wm. P. Gibbons made the mortgage to secure this debt, does not distinctly appear. It would seem, a priori, that, when Gibbons gave this mortgage as security for the debt for which it was executed, the usual legal incidents to this form of contract attached—that the creditor had the right, as one of those incidents, to enforce the security—and this he seems to have done in the usual mode, by filing a bill to sell and foreclose. The effect of the sale was to vest the title in the purchaser, if the land were not redeemed in the regular order of procedure. There was no redemption, or attempt at redemption ; consequently the title to the property became vested in the purchaser. We see no necessity for making the Duponts, who were the subsequent mortgagees of the interest of Rodman Gibbons, parties to this foreclosure suit, so far as Wm. P.’s interest is concerned, for they were not subsequent mortgagees of the land or interest of Wm. P. Gibbons, but only of the interest of Rodman Gibbons. It is quite true that the effect of the failure to make them parties was to leave them unaffected by the decree ; and that, being the assignees of Rodman thus unaffected, they still continued, notwithstanding the decree, assignees of his right, with the privilege of redeeming the premises mortgaged by Rodman; but never having been assignees of William’s rights, we are at a loss to see how either before or after the decree, they could claim to redeem from the sale made of William’s interest. The case would be clear of all difficulty, if William had, subsequently to the execution of the mortgage by Rodman, executed