27 U.S. 354
2 Pet. 354
7 L.Ed. 449
WILLIAM CAMPBELL'S EXECUTORS, APPELLANTS
PRATT, FRANCIS AND OTHERS, APPELLEES.
January Term, 1829
APPEAL from the circuit court of Washington county.
The matters in controversy in this case arose out of proceedings in the circuit court, under the mandate of this Court issued at February term 1815, in the case of Pratt and others vs. Campbell and others, reported 9 Cranch, 456.
In the circuit court, the appellants in this case filed their bill alleging that they had been injured by the proceedings under the mandate, 9 Cranch, 58, and that the court gave a decree against their claims, as set forth in the bill. From this decree they appealed.
The counsel for the appellants contended, that by the decree passed by the circuit court in the original cause, the appellants had sustained injury in the following particulars.
1. Of the thirty-six squares mortgaged to Law, thirty-two were attached and purchased by the appellant; and four squares therefore remained affected only by Law's mortgage.
Campbell was permitted to redeem his thirty-two, by paying their proportion of the whole of Law's debt; thereby making the four remaining squares bear also their proportion of Law's debt.
Admitting this to be right, it should have been decreed, upon the same principle, that if the parties did not redeem, the sale should be made so as to produce the same result—that is, the four squares not purchased by the appellant should have been sold first, and his thirty-two squares should only have been sold to make up the deficiency of Law's debt.
The court below put on these four squares only the sum of $2806.29, (much less than their proportion) and decreed them to be sold last; thereby saving them to Pratt and others, if the other squares produced enough to pay Law, and thus giving them a preference over the appellant, denied by this court in the original cause.
2. Of the eighteen squares mortgaged to Duncanson, thirteen only were attached and purchased by the appellant—consequently five remained; and these five the appellant contends, on the same principle, should have been sold first, and the appellant's thirteen only resorted to, to make good the deficiency under that mortgage.
It was contended that these errors can be corrected, by this Court's ordering that such of the said squares as have not been sold, shall be sold for the benefit of the appellant—and that the money received for such as have been sold, shall be decreed to him, or the sales rescinded.
3. The court below also erred in requiring the appellant to redeem from both mortgages, and decreeing that in case he did not redeem from both, the squares should be sold to satisfy both.
The case was submitted to the Court on the written arguments of counsel. Mr Swann and Mr Key for the appellants. Mr Jones for the appellees.
Mr Justice JOHNSON delivered the opinion of the Court.
This cause has its origin in the great case of Pratt, Francis et al., which appeared in this Court some years ago with the formidable bulk of nine hundred folios! The rights of the parties had become exceedingly perplexed in the progress of large and multifarious transactions, originating in the speculations of Morris, Nicholson & Greenleaf, in the land of this city. Thomas Law held a mortgage of thirty-six squares from Morris, Nicholson & Greenleaf, and fourteen of the same squares were mortgaged by them to one Duncanson. Campbell acquired the equity of redemption of Morris, Nicholson & Greenleaf, in thirty-two of the thirty-six squares, the four others not being included, in Duncanson's mortgage. The equity of redemption in these four squares has passed by assignment to present appellees, in right of Morris, Nicholson & Greenleaf. Thirteen of the squares included in Duncanson's mortgage were among the thirty-two in which Campbell had possessed himself of Morris, Nicholson & Greenleaf's equity of redemption; and his constant efforts have been to reduce the sum due on Law's mortgage, to put aside that of Duncanson, as a satisfied incumbrance, and to obtain a precedence to Morris, Nicholson & Greenleaf's equity, in the four remaining squares.
This Court established the principles on which the sum to be raised to satisfy Law's mortgage should be ascertained; decided against any precedence in Campbell, as a joint holder of the equity of redemption; and sustained Duncanson's mortgage, in favour of a prior equity which Greenleaf held in it. So that in effect, the cause went down to the circuit court for the sole purpose of having a sale of the squares effected; the proceeds applied, first to pay off Law's mortgage, then Greenleaf's interest in Duncanson's mortgage, and the balance only, if any, to go to the equity of redemption. Substantially, this has not been done; for we now find the two squares, which form the subject of the present controversy, in the hands of Pratt et al. the appellees, which could only be in the right of Morris, Nicholson & Greenleaf's equity of redemption; whereas Duncanson's mortgage, to a large amount, remains unsatisfied; and Campbell, with eight-ninths of the equity of redemption in him, has received nothing.
If then the appellees should be confirmed in the possession of those squares, it is obvious that Campbell would have much to complain of, since his equity of redemption in the other thirty-two squares had been, in effect, applied to the extinction of a common incumbrance. This would serve him at equity in eight-ninths of these two squares.
But this is a mere delusion, since the holders of the equity of redemption could rightfully receive nothing until the mortgages were both paid off. This was certainly the case with Morris, Nicholson, & Greenleaf; and this Court has been constantly inculcating that Campbell stood precisely in their shoes, and was entitled to no higher equity.
All the obscurity in which the case is involved, and which has seemed so long to keep both parties from approaching it, arises from an error committed below, probably by the commissioner, in selling the doubly incumbered squares before those singly incumbered were disposed of; the consequence of which is, that these squares, which were not in Duncanson's mortgage, remain unsold, because the sale of the thirty-four satisfied Law's mortgage; whereas, by beginning with the sale of those singly incumbered, two squares (supposing the value to be the same) would have remained, to be applied to the payment of Greenleaf's interest in Duncanson's mortgage.
But there is nothing in this for Campbell to complain of; since after applying the proceeds of these squares to the payment of the second mortgage, it still remains unsatisfied to a great amount, and leaves Campbell nothing to receive in right of his equity of redemption.
The decree of the court below, as against this appellant, will be affirmed.
This cause came on to be heard on the transcript of the record, from the circuit court of the United States for the district of Columbia, holden in and for the county of Washington; and was argued by counsel; on consideration whereof, it is considered, ordered, and decreed by this Court, that the decree of the said circuit court in this cause be, and the same is hereby affirmed with costs.