Macovich v. Wemple

Baldwin, J. delivered the opinion of the Court Cope, J. concurring.

This was a bill filed by the plaintiff—respondent here—to enjoin a sale under a decree obtamed by one Wemple against one Pender to enforce a mechanic’s lien upon certain premises in the city of Marysville. The plaintiff claims title to the premises by virtue of a purchase of the property under a decree for the foreclosure of a mortgage, to wMch decree all the persons in interest were parties, among them Wemple and Pender. The decree was rendered on the seventeenth of May, [106185]8; and by it the interest of Wemple and Pender was held foreclosed in the usual form of such decrees. The bill states that at the sale under this decree—thirtieth of June, 1858—the plaintiff became the purchaser, and will, if the premises be not redeemed, be entitled to the Sheriff’s deed. The bill goes on to aver that on the fourth of November, 1857, Wemple sued Pender—plaintiff not being a party—to enforce a lien claimed by Wemple upon a part of the property above sold. This suit was brought under the Act of April 19th, 1856, for $1,794, and interest at the rate of three per cent, per month from twenty-third of May, 1857, for labor and material on two brick buildings. The bill proceeds to show various grounds of objection to this claim to enforce this decree or mechanic’s lien as against the plaintiff below or the mortgages foreclosed. A decree was rendered by the Court below setting aside this decree so far as the plaintiff was concerned, and enjoining the sale under it.

The difficulty which we experience in this case is not upon the substantial merits of the claim, upon the facts as they appear; but as to the right of the plaintiff to intervene in this form. He is only the purchaser of an equity, or was only such at the time of the filing of the bill. The decree of foreclosure did not cut off the rights of the mortgagor. The mortgagor was entitled to the possession until the Sheriff’s deed, and had also remaining the equity of redemption. He could dispose of this right whenever he chose, and it might, under our comprehensive statute, be disposed of for his debts. If the mortgagor chose to confess judgment, or recognized the validity of the claim of Wemple to this lien or to the enforcement of it, or to the sale under judgment, the plaintiff is in no condition to complain, for his rights are not at all affected by the proceedings, if he was not made a party. Upon obtaining his deed, he can institute the necessary proceeding to vindicate his right, and the purchaser at the Sheriff’s sale under Wemple’s decree would not occupy any better position than Wemple himself. But as long as Pender had any interest in the property, it might be sold for his debts, and we do not see how the plaintiff can, in advance of his own title or of the extinction of Pender’s, come into a Court of Equity to enjoin the sale.