Steward v. Allen

delivered the opinion of the Court.

From the pleadings in this case, terminating in a general demurrer to the replication, it appears that the premises on which the plaintiff caused his execution to be extended in the usual form, and by virtue of which extent, he, at the time, supposed he had acquired a complete title thereto, had been several months prior to that time conveyed in fee and in mortgage to Farrar to secure the payment of a sum of money exceeding the true and just value of the same estate ; which mortgage now remains in full force ; the said debt being wholly unpaid. It further appears that at the time of the levy, though said mortgage deed was recorded soon after its date, the plaintiff had no actual knowledge of its existence, and of course no reference was had to it in the appraisement of the premises. Under these circumstances is the plaintiff entitled to an alias execution, on the ground of failure or want of title in the defendant, at the time of the levy ?

The provision of the statute of 1823, ch. 210, is in these words: “ That whenever any execution has been or may be extended and *106levied upon real estate, for the purpose of satisfying the same; and after Such levy it shall appear that the real estate thus levied upon did not belong to the debtor, upon application to the court that issued' the execution, they are authorised* to issue an alias execution.” The above mentioned act is a transcript of the statute of Massachusetts of 1798, ch. 77, sec. 4. It is true, that as between the mortgagor and strangers, or third persons, he is Considered as owner of the fee; ' though as between him and the mortgagee, the fee is considered to be in the latter; still, in estimating the value of the mortgagor’s estate or interest, it can only be viewed in the light of an equity of redemption ; and such was the defendant’s interest at the time of the levy. By the act of 1821, ch. 60, sec. 17,(which is a transcript of the statute of Massachusetts on the same subject) an equity of redemption is to be sold at auction like personal estate. It is true, it seems to be settled by the cases of Warren v. Childs and White v. Bond, cited in the argument, that lands under mortgage may be taken by appraisement, where no deduction is made on account of such incumbrance, and the levy be effectual. In both the cases ahove mentioned the court proceed upon the ground that the creditor knew of the existence of the mortgage. In Warren v. Childs, the Chief Justice speaks of the effect of the levy, “ supposing the judgment creditor willing to lose the value of the incumbrance, and to take the estate as absolute in . the, debtorand in White v. Bond, the Chief Justice observes that “ if under such circumstances the creditor chooses to proceed in this manner.” the levy may.be good and operate as an assignment to him of the equity of redemption. As before observed, actual knowledge of the incumbrance is presupposed ; or else the expressions “ willing to lose” and “ choosing to proceed,” were improperly used by the Court, and this we can by no means presume.

But it has been urged that inasmuch as it appears by the replication that the mortgage was on record many months before the levy, it was not competent for the plaintiff to aver' his actual ignorance of its existence; and so, not being well pleaded, this fact is not admitted by the demurrer. Generally speaking, the constructive knowledge of a deed, resulting from the record of it, is equivalent to actual knowledge-, in its effects upon subsequent conveyances; but to some *107purposes there is a material difference between them. We therefore tliiuk the want of actual knowledge is well pleaded, although the same replication discloses the existence of the record furnishing the evidence of constructive knowledge. A levy on lands under mortgage cannot be effectual, unless voluntarily made with actual knowledge of the incumbrance, and without any deduction on account of it.

We now proceed to another point, and that is whether, according to the facts admitted by the demurrer, the defendant had such an interest and title in and to the premises, as that they could be said to “ belong to him,” according to the true intent and meaning of the statute; which, being a remedial one, is entitled to a liberal construction for the advancement of right and justice. It is expressly averred and admitted that the lands wore mortgaged to Farrar for more than their just and true value ; of course the right in equity of redeeming them was of no value whatever; and could not have been, whether sold at auction or taken by appraisement. Under such circumstances the land could not be said to belong to the defendant, in such a sense as the statute intended; for the plaintiff could not by any possibility avail himself of it, or derive any advantage from it; because he could not remove the incumbrance of the mortgage, except by paying more than its value. The only rational and consistent construction of the statute, and which will answer the purposes of justice as contemplated by the legislature, seems to be that which we have given.

It has been said that the plaintiff has made his election; and after-wards, having discovered that he had made an injudicious bargain, now wishes to correct his own miscalculations at the expense, and to the injury, of the defendant, whose right of redemption he has taken away. But all foundation for this argument vanishes, when we advert to the fact that the plaintiff was ignorant of the existence of the mortgage, and therefore was incapable of making an election, as the argument Supposes. It seems by the two cases cited from the 12 and 14 .Mas*, that in such a case as this, an action of debt would lie on the judgment, by reason of the failure of the supposed tide; and why should not tho plaintiff have the remedy he now seeks ? No part of the judgment has been satisfied by the defendant; and justice demands *108that he should satify it. We therefore adjudge the replication to be good and sufficient in law. The plaintiff is entitled to an alias execution, as prayed for, for the sum due on die judgment; and the clerk, as clerk of the Court of Common Pleas, is authorized and directed to issue such alias execution; and the plaintiff is also entitled to his costs in this process, for which judgment is to be entered ; and for such costs, a writ of execution will issue from this court.