DICKINSON
LAMOILLE'OOUNTY NAT. BAliL
747
DICKINSON f1. LAMOILLE COUNTY NAT. BANK
and others.
(Oirouit Court,
n.
Vermont. July 14, 1882.)
MORTGAGE-FORECLOBURE-RIGRTS OF ATTACHING CREDITOR.
An attaching creditor,on an attachment made before proceedings to foreclose, is a proper party to the proceedings, and is not bound by the decree unless made a party to the suit, and he acquires a right to redeem the mortgage or submit to be foreclosed; but where neithet he nor the debtor redeems, he loses as to him, and he is not entitled to the benefits of his right and it is any agreement made by the debtor affecting the decree.
In Equity. William H. Dickinson, for Philip K. Gleed, for defendant. WHEELER, D. J. This cause has been submitted on bill,answers, replication, proofs, admission of facts, and briefs. From the pleadings, proofs, and admission it appears that the orator was the owner of a note against one Griswold, on which suit was brought in the name of the defendant Heath; and among other real estate of Griswold a farm was attached to a mortgage to one Wheelock, then being foreclosed; that subsequent to the attachment a final decree of foreclosure was entered that unless the mortgage debt should be paid in instalments, at certain times fixed, Griswold and all persons claiming under him should be foreclosed and forever barred of all equity of redemption in thepremisesj that afterwards Griswold became largely indebted to the defendant bank, and after paying all the instaiments of the foreclosure but the last two, executed a mortgage to the bank of all the real estate to secure that indebtedness; that at the solicitation of Griswold, and for the purpose of aiding him, the bank entered iiltoan agreement in writing with him,' by the terms of which; inconsideration of certain payments made and to be made at specified times by him, the bank agreed to assign all its claims and securities to the attorney of Griswold, and in case it should become the owner of Wheelock's decree to llissign that also, on payment of what the bank .Bhould pay for it, with interest, and that in case the several sums should not be paid by the time stated the the bank assumed no obligation by the contract; that the bank amount of the instalments due to Wheelock and took the decree. The first payment to be. made by GriSWOld, under the agreement was after the expiration of the time ofr,enemption in the decree. Griswold made a part, of the payments; not .a11 of! and finally the bank took possession of alltlie premises' and sold them to the
14:8
FEDERAL REPORTER.
defendant Hendee, who sold one-half and afterwards the other to the defendant Paige, who paid a large part of the purchase money, and more than the amount of the Wheelock decree paid by the bank, without any notice or knowledge of the agreement between the bank and Griswold. Judgment was recovered in the suit in the name of Heath against, Griswold, and the land covered by the decree was levied upon 8ubjectto the Wheelock mortgage, appraised at the amount due on the last two instalments, and set out to the creditor in satisfaction in part of the judgment. This bill is brought by the orator as equitable owner of the judgment, and of the right to the land set off to satisfy it to redeem the land from the Wheelock mortgage. There is no question about the regplarity of the foreclosure proceedings, or of the judgment, or of- the procel:)dings in levying upon and setting out the land to the creditors, nor as to the right of the orator to the judgIP.ent :and its. avails. The sole question is as to the right to redeem·.. As the foreclosure proceediIlgs {were pending against Griswold when his right was attached, HeathaIld the orator) in whose right the attachment was made, were affected by them the same as if they had been mbde parties to them. Story, Eq. §§ 405, 406. The attaching creditor, if the attachmeljlt.had been made before the commencement of the proceedings to foreclose,would have been a proper party to the proceedings, ·and would ,not have been bound by the dEicree without being made a party. Cka.ndler v.Dyer, 37 Vt. 345; Gen. St. Vt. 1878, p. 841. The proceeding by attachment was in invitum, and by it the orator; through Heath, acquired a right independent of Griswold to redeem alld by the decree he became bound to redeem ,it according to, the decree, if he would save his right to the Muity of re4emption acquired by the attachment. Griswold had the right to redeem or not ashe might 'be able or see fit; the oratQr had the right to redeem or not as he might see fit. If either redeemed it would be redeemed, and respective rights woul4. take placeaccprdingly; al}d if neither wquld be foreclosed.· i Neither did redeem,and their rights bec.ame affected accordingly, except as varie;d by other circ'WllBtances. It is claimed by tpe oratqr that the agreement to .take'whatthe.decree cost, after its eXpiration, opened the decree as to all parties. It is probably true that it did a new agreement of open the decree as to Gri!'Jwold. ):t the parties. in place of the By that. agreement,if he: pa,id, to hlilovethe pren;J,ises. was like thfl Agreement In}he (lriginal mortgage, by which,if, h\3 was to have the premises.
DICKINSON V. LAMOILLE OOUNTY NA.T. BA.NK.·
The original mortgage had to be foreclosed to eut off his right to redeem that, notwithstanding his faHure to pay, and this agreement might have to be foreclosed anew to cut off his right to redeem, notwithstanding his failure to pay according to that. Cooper v. Cole, 38 Vt.185. The question remains, however, whether this agreement made with Griswold would open the decree as to the orator, who had no part in making the agreement. Had Griswold redeemed, the mortgage would have been removed from the estate and left it free as to that for the orator to levy upon; but that result would bave followed from the fact of the redemption and not from the force of the agreement. Had the orator redeemed the decree, he could have stood .upon it in his own right. Wheeler v. Willard, 44 Vt. 640. As no one redeemed it, he .foreclosure lost his right; it was foreclosed as to him·. be neceswas made necessary only by the. agreement, it would sary as against the parties to the agreement. The new agreement was toade with Griswold for his own. benefit; the orator had nothing to do with it, and shows no ground for Claiming that it was for his it. And further,if could be benefit, or for claiming said that as the orator is bound by the decree under Griswold, he should be entitled to the benefits of the agreements of Griswold affecting the decree, it would have to be said stilI further that, if he would take .Griswold's agreement to stand upon, heroust take it in all its parts as Griswold made it. Griswold was foreclosed, exc'ept for the effect of the agreement. He acquired no right'to redeem 'except by the terms of the agreement. Should he bring & red,eeIl,l,it would have to be founded on the agreement. The orator can have no greater right than that. But he has not brought his bill, and does not1by it offer to redeem according to that. He claims the right to redeem that parcel of thewhble, and to bavethe benefit of that. part of the agreement and let the rest go. Such a result would be highly inequitable.. Still further, thispurelyequit8lble right to redeem can· not in equity be enforced against the pu·rchasers. of the without notice. The bank had' the full legal title appea,ring ot'rec()rd, and had possession at the time of Hendee's purchase.' 'Thisagx!'jeDlent did not appear of record. The proof not only fails ,t!> shoW Hendee had· beard of it, but shows affirmatively that he ha<i of it. The or!litor, therefore, has no right to. redeem his g r a n t e e . : : , , 'Let Q deoree be entered dismissing the bill, d
:fW:;
750
nDEnL REPORTER.
Bum and others
'V. CHIOAGO
&
PACIFIO
R. Co.
(Circuit Court, N. D. nlinoi8. July 7, 1882.) HEDEMPTION FROM FORECLOSURE SALE-CLERK'S COMMISSIONS.
The rule of the federal court requiring a party redeeming real estate, which has been sold under a foreclosure decree, .to pay 1 per cent. commissions to the clerk, on the amount paid into court for the redemption of the property, in addition to the amount, with the prescribed interest thereon, going to the purchaser, is in accordance with section 828 of Revised Statutes, and is not in derogation of the right of redemption given by the state law. The right of redemption given by the state law must be permitted in the federal court, subject to the act of congress fixing the amount to be paid to the clerk on all moneys received, kept, and paid out by him in pursuance of any statute or undera.ny order of court·
.Larned rl Larned; for complainant. HARLAN, Justice. This court, some time back, adopted, and entered of record, rules in regard to the redemption of property from sales under decrees in chancery. One of these rules is in these words: "Any defendant in the ,suit in which sllch decree is entered, his heirs, adminor aBsigns, or any person interested through or under the defendant in the premises' so sold, may within 12 months from said sale redeem the real estate sdsold by paying to. the purchaser thereof, his heirs, executors, or assigns, or to the clerk ·of the court for the benefit of such purchaser, his exec'. utor, adminiatrators, prassigns, the of money for which said premises were lij)ld or bid off, with interest at the rate of 10 per cent. per aunum from the date of such sale; and in case such'redemption is made by pa.yment of the money to clerk, the person so redeeming shall also pay an additional sum of 1 per cent. on thestnount so paid iridts the clerk's iee for receiving and ·disbursing said redemptiQumoney ; and the clerk, on receivjng saidredemption ·money, at once deposit the same in the registry of the court.'" .
A similar rule exists when the redemption is tnade by a .creditor of the defendant who may be. entitled under the law to redeem. The property of the defendant was sold under deed of foreclosure for $916,100. The purchasers of the property refusing to accept the redemption money, the railroad company was required to pay and did pay to tlie clerk of this court $1,012,392.85, being the amount of · sale, with 10 per cent. interest from the date of sale, as required by ; the local statute, and 1 pei cent. on the purchase money and interest, as required by the before.mentioned rule. Subsequently, 3nd after the iexpiration of severa.l days, the ',clerk, under the orde.r of the court, paid out of the fund to the purchasers of the property :UJ OQ2,369.19, being the purchaSe moliley'and,interest, leaving in cour';o£ \lleflll,nd. the sum of $10,023.6.6..