Scott, Carhart, & Co. v. Warren

Benning, J.,

concurring.

Barnes sold and conveyed land to Wade, taking from him a mortgage on the land, to secure the payment of the purchase money. The conveyance and the mortgage back were made at the same time.

At that time, Scott, Carhart & Co. held a judgment against. Wade, the purchaser.

To which was the land subject, the mortgage or the judgment ? To the mortgage, in the opinion of the Court below, and in my opinion.

What belongs to a man may be bound by a judgment against him, but not what does not belong to him.

When a man purchases land from another, and one of the terms of the purchase is, that the land shall be a security for the payment of the purchase money, all that comes to belong to the purchaser, is such an interest in the land as is consistent with a liability in the land to be sold, for the payment of the purchase money; and, therefore, such an interest in the land as this is all that a judgment against the purchaser can bind.

That this is so in a case in which all the terms of the purchase are put in one instrument, nobody, I suppose, doubts. And can it make any difference that the case is one in which some of the terms of the purchase are put in one instrument and some in another. I think not. It frequently happens, that to get the whole of a transaction resort has to be had to several pieces of writing; but the transaction, when gathered' from the separate pieces, is the same, in legal effect, as it would have been if got from only a single piece.

And in the present case, is it not clear that Barnes sold the land only on condition that it was to stand as a security for the purchase money? I think it is. That is the conclusion to which we must come, it seems to me, from considering the simultaneousness of the deed from Barnes to Wade, and of the mortgage back from Wade to Bames. It is true, *414that in the order of the events of the transaction, the deed may have preceeded the mortgage; but, as the transaction was incomplete until the mortgage was made, no rights vested under the deed until the mortgage was made. In a word, the rights under the mortgage vested simultaneously with the rights under the deed. The mortgage had to be made to render the deed good. If the mortgage had not been made, the vendor might have, compelled a re-delivery of the deed.

If it be true, therefore, that one of the terms of Wade’s purchase was, that he was to mortgage back the land to the vendor, Barnes, to secure the payment of the purchase money, then, all that ever came to belong to Wade was only such an interest in the land as was consistent with the liability of the land to be sold for the payment of the purchase money. And this was all that the judgment could bind.

But, say that the effect of the deed was, to pass the whole legal title out of Barnes into Wade: yet that title did not abide in Wade for a single instant; it merely passed from Barnes into him, and out'of him back again into Barnes, without stoppage, and as quick as thought.

An interest that merely passes through the husband without abiding in him for a single instant, is not such an interest as will entitle his widow to dower in the land. Would his judgment creditors stand on a better footing than his widow ?

And then, it is to be borne in mind, that all equity is in favor of giving the mortgage the priority. The judgment creditor did not credit on the faith of the mortgaged property, for he credited before his debtor had acquired any interest in that property. The mortgage creditor credited exclusively on the faith of that property.

Upon the whole, I think that the mortgage had priority over the judgment and therefore that the Court below was right in overruling the demurrer.