Moulton v. Leighton

• Decision Date: 15 December 1887
• Parties: MOULTON v. LEIGHTON, (two cases.)
• Court: U.S. District Court — District of Minnesota

33 F. 143

MOULTON v. LEIGHTON, (two cases.)

United States Circuit Court, D. Minnesota.

December 15, 1887

Jackson Atwater & Hill, for plaintiff.

Kitchel Cohen & Shaw, for defendant.

BREWER J.

This is a motion by defendant for judgment on the pleadings. I shall consider two questions only.

It is apparent from the pleadings, taking them altogether, that the plaintiff is a mortgagor, suing in ejectment against the defendant, who has all the rights of a mortgagee in possession. There having been an attempted sale, the title sought to be conveyed by that sale passed by sundry mense conveyances to the defendant. It is insisted that such an action cannot be maintained. If it were in the state court there would be no question, for the supreme court of this state, in the case of Johnson v. Sandhoff, 30 Minn. 201, ^[1] has ruled that an action in enjectment will not lie under these circumstances. But it is insisted that a different rule obtains in the federal court, because no equitable defense can be presented in an action of ejectment, and that therefore the remedy of the defendant is by a bill in equity to enjoin the legal action. But the supreme court of the United States, in the case of Brobst v. Brock, 10 Wall. 529, has also declared that an action of ejectment will not lie in the federal courts by the mortgagor against the mortgagee in possession. That case went up from the state of Pennsylvania, and it is insisted that a different rule must obtain here, because, by the settled law of this state, a mortgage passes no title, and conveys no estate,-- simply creates a lien; and therefore that as the legal title has not passed from the mortgagor, but remains with him all the time, the mortgagee, though in possession, has nothing but a lien or right in equity, which he can enforce only in a court of equity. Of course, it is familiar that at common law, and in most of the New England states, a mortgage is a conveyance of the title, which becomes vested in the mortgagee upon default in the payment of the amount secured by the mortgage, and that one of the remedies that he has is an action of ejectment for the possession. It is true that in this as well as in most of the western states a mortgage is looked upon as an incident. The debt is the principal thing; the mortgage is merely a security therefor. An assignment of the debt carries the mortgage. A conveyance by the mortgagee passes nothing. And there are expressions in several opinions of the supreme court of this state running along that line of thought; and yet there are other expressions used by that court by which the mortgagor's interest is spoken of as an equity of redemption. In the case in Wallace, supra, Mr. Justice STRONG states the rule correctly, and I think applicable to the law in force in this state, in these words:

'It is true that a mortgage is in substance but a security for the debt, or an obligation, to which it is collateral. As between the mortgagor and all others than the mortgagee, it is a lien, a security, and not an estate. But as between the parties to the instrument, or their privies, it is a grant which operates to transmit the legal title to the mortgage, and leaves the mortgagor only the right to redeem. Formerly, if the condition was not strictly performed, the estate in the mortgagee, at first conditional, became absolute, and the mortgagor's right to redeem was lost. The estate or interest, though defeasible at its inception, became unconditional on a failure of the mortgagor to pay the money secured, or fulfill the condition at the time appointed for the performance.' That authority is cited by the supreme court of this state in the opinion to which I have referred.

Looking at the instrument itself, it is a conveyance; that is, it is such in terms,-- a conveyance of the title subject to a defeasance; and that the legislature of this state recognized the scope and import of it as a conveyance...