Fisher v. Tallman

• Decision Date: 31 October 1881
• Citation: 74 Mo. 39
• Parties: FISHER v. TALLMAN, Appellant.
• Court: Missouri Supreme Court

74 Mo. 39

FISHER

v.TALLMAN, Appellant.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Worth Circuit Court.--HON. S. A. RICHARDSON, Judge.

REVERSED.

B. F. Lucas for appellant, cited 2 Story Eq. Jur., § 1023; Brinkerhoff v. Brown, 4 John. Ch. 671; McElwain v.Willis, 9 Wend. 548; Suydam v. N. W. Ins. Co., 51 Pa. St. 394; s. c., 12 Phila. Leg. Intell.

Johnston & Jackson for respondent, cited 1 Wag. Stat., p. 51; R. S. 1879, § 448; Sess. Acts 1860, p. 3, § 2; Heyneman v. Dannenberg, 6 Cal. 376; Castle v. Bader, 23 Cal. 76; Conroy v. Woods, 13 Cal. 626; Ib. 76; Scott v. McMillen, 1 Litt. (Ky.) 302; s. c., 13 Am. Dec. 239; Luthy v. Woods, 1 Mo. App. 167; Beal v. McVicker, 3 Mo. App. 592; Pendleton v. Perkins, 49 Mo. 565.

HOUGH, J.

The only question which we deem it important to decide in this case is, whether an attaching creditor can maintain a suit to redeem land which has been attached, from a mortgage executed by the defendant in the attachment suit. The general rule is, that as an ordinary creditor before judgment and execution has no certain claim upon the property of his debtor, he has no concern with conveyances of any kind affecting such property. Martin v. Michael, 23 Mo. 50; Turner v. Adams, 46 Mo. 95; Pendleton v. Perkins, 49 Mo. 565; Story Eq., § 1023. After the decision of this court in Martin v. Michael, supra, a change was made in the law by the act of January 14th, 1860, which has continued in force ever since, and is now found in section 448, Revised Statutes, whereby any attaching creditor may maintain an action for the purpose of setting aside any fraudulent conveyance, assignment, charge, lien or incumbrance of or upon any property attached in any action instituted by him. This statute, however, is not broad enough to cover the case we are now considering. In the absence of statutory provisions on the subject, the party seeking to redeem from a mortgage must not only have a jus ad rem, but a jus in re. We are aware that it has been held in the case of Chandler v. Dyer, 37 Vt. 345, that an attaching creditor may redeem--but we are not satisfied with the reasoning in that case. If an attaching creditor has such an interest in land as will rant the court in permitting him to come in and redeem, it must necessarily follow that he is a proper party to a bill of foreclosure. That he is not considered in this State a proper party to a bill of foreclosure, is evident from the language of our statute providing who may be made parties. That statute limits the right of coming in to persons claiming an interest in the mortgaged property. Nor is it at all necessary for the protection of the interests of an attaching creditor that he should have the right to file a bill to redeem. His attachment binds the interest of the mortgageor, and in the event of a sale under the mortgage before...