dissenting:
Whilst I do not dissent from the conclusion reached by my brother judges, upon the whole record in this case, I prefer to express my own views in relation to the sale of Watkins’ equity of redemption in the lands conveyed by him to Cypert as trustee, to secure the payment of the debts which he owed to Mrs. Dougan.
Equitable interests in estates were not, by the common law, subject to sale on execution.
What equitable estates may be sold on execution from the courts of law, under the statute (Gantt’s Digest, sec. 2630) has been the subject of judicial controversy in this, as well as in other States, where like statutes have been enacted.
In The State, use etc., v. Lawson et al, 6 Ark. (1 Eng.) 269,, the rule which generally prevails in the United States, that the right of a mortgagor to redeem his estate is liable to be taken upon execution by his creditors, was recognized. Freeman on Executions, sec. 190.
But in that case, the debtor conveyed his land to a trustee to secure the payment of money borrowed of the creditor, the deed to be void on payment of the debt at maturity,- but on failure to pay the debt, the trustee (a third party) was empowered to sell and convey the land, and pay the debt out of the proceeds of sale; and the court held, that the right of the maker of the trust deed to redeem the land, before sale by the trustee, was the subject of sale on execution.
The court said, if the maker of the deed had conveyed the land to the trustee, in trust for the creditor, unconditionally and without reserving to himself any right of redemption, by payment- of the debt or the performance of any other duty, it would have been strictly a deed of trust, and nothing would have remained in the maker of the deed, which could have been sold on -execution.
The first and last of the above propositions have never been controverted by any of the later decisions of this court, and had the second proposition, which was the point before the court in the case referred to, been adhered to, it would perhaps have been in harmony with the weight of authorities. But it was overruled in Crittenden v. Johnson, 11 Ark. (6 Eng.), 94, twenty-seven years ago, and the ruling in this case, has been uniformly recognized and followed in all the latter cases, and I am reluctant to disturb a rule of property so long established. If the rule has proved an evil, which I doubt, it is better to change it by legislation made to affect future transactions, than for the court to hazard the infliction of loss and wrong upon persons who have acted in reference to the rule, by reversing its own decisions.
The opinion of the court in Crittenden v. Johnson, is very brief, on the point in question, and may not have been quite.satisfactory to the legal profession; but it was approved and supported in Pettit et al v. Johnson et al, 15 Ark., 100; Cornish v. Dews et al, 18 ib. .175; Biscoe v. Royston, ib. 519 ; and in Pope’s heirs v. Boyd, 22 Ark., 538.
That Watkins had the right of redemption in the lands conveyed by him to Cypert as trustee, to secure the payment of the debts which he owed Mrs. Dougan, there can be no doubt, but that this contingent right could be sold on execution I cannot affirm, without overruling some of the decisions of this court of long standing; and. upon which many persons, who have heretofore made such deeds of trust, may be relying for protection against such sales.
It was well said in Pettit et al v. Johnson, that: “A sale of an interest so uncertain, as to the nature and extent of the interest, as to the time when the purchaser could take the benefit of his purchase, would, in most instances, be attended with great loss to the debtor, and of very little benefit to the creditor,which are the prominent considerations to be considered and guarded against in-judicial sales. We must presume that the legislature did not loose sight of this in passing the act authorizing the sale of equitable estates under execution. They must] have known that no one would be inclined to bid the value of interests so doubtful, and to enjoy which the purchaser would have to resort to a Court of Equity to ascertain his true interest, and affirm his title.”
But this argument does not apply to the validty of the sale in this case, because' it appears that Watkins gave his written consent to the sale under execution in favor of Greenwood and son, waiving public notice of the time of sale, etc.; and he is estopped from setting up any objection to the sale.