Robertson v. Van Cleave

<p>Trust and Trustee. — Cestui que Trust. — Decree.—Where a trustee, who represents the beneficiaries, is in court, the decree rendered binds them in so far as it affects the trust property.</p> <p>Mortgage. — Foreclosure.—Decree, who Bound By. — Trustee and Beneficiaries. — Judgment Creditors. — Partition.— Counter-Claim — At an execution sale the judgment creditors chose of their own members certain ones as trustees. The judgment debtor’s land was purchased by those so chosen, as trustees for themselves and the other creditors, and the sheriff’s certificate was issued to them as trustees. In a suit to foreclose a mortgage executed by the judgment debtor the trustees were made parties.</p> <p>Held, that the decree of foreclosure rendered therein, adjudging the mortgage to be a paramount lien, was binding on the trustees and the other creditors as the beneficiaries of the trust.</p> <p>Held, also, that even if the. judgment creditors were not parties to the foreclosure suit through their chosen trustees, the decree was not a nullity, and the mortgagee had a right, in a subsequent suit, to secure a decree barring their equity of redemption. Such right may be set up as a counter-claim in a suit by all the creditors for partition of the land.</p> <p>Execution. — Sheriff’s Sale. — Judgment Creditor’s Bid. — It is sufficient to make a sheriff’s sale effective, in cases where the judgment creditor is the purchaser, if the amount of the bid is properly credited upon the execution, by his direction and authority.</p> <p>Same. — Holder of Sheriff’s Certificate of Purchase. — Redemption from Mortgage Foreclosure. — The holder of a sheriff’s certificate of sale under execution on a judgment may redeem lands sold on a decree of foreclosure of a mortgage made by the judgment debtor,, the lien of which is prior to that of the j udgment.</p> <p>Same. — Right of Redemption as Judgment Creditor. — Sufficiency of Application to Redeem, How Determined. — Such holder of a sheriff’s certificate is entitled to redeem in the character of a judgment creditor, and not as owner, and hence the sufficiency of the application must be determined by section 772, R. S. 1881, which requires a statement specifying the amount and date of the judgment, and the amount due and unpaid.</p> <p>Constitutional Law. — Obligation of Contract. — Statute Reducing Interest on Redemption from Mortgage. — A statute enacted subsequently to the execution of a mortgage, reducing the rate of interest which the purchaser might receive on his bid in case of redemption from ten per cent, to eight per cent., is not unconstitutional as impairing the obligation of a contract between the mortgagor and the mortgagee.</p> <p>New Trial. — As of Right. — Partition.—Where, in an action for partition, the question of title is directly put in issue and adjudicated, the unsuccessful party is entitled to a new trial as of right.</p> <p>Execution.- — Right of Redemption. — Purchaser Under Execution. — Equitable Title. — Lien-Holder.—The title remains in the judgment debtor, not only until the right of redemption .is lost, but until the power to redeem no longer exists, and the power to redeem ends only when the holder of the certificate demands a deed. The holder of a sheriff’s certificate, who has taken no steps to obtain a deed, is no more than a lien-holder, regardless of the time which has elapsed since the sale. The expiration of the year allowed for redemption enlarges his rights by adding to his lien an equitable interest in the land sold. If he demands a deed, l}e acquires a legal title. Until he procures a deed he can not redeem as owner under section 768, R. S. 1881, but must redeem as a judgment creditor, or lien-holder, under section 772, R. S. 1881. Olds, J., dissents.</p>