Yeldell v. Stemmons

Scott, J.,

delivered the opinion of the court.

This was an action of replevin, begun by the appellants against the appellee for three slaves and a ferry boat, purchased by the appellants at a sale under an execution against the appellee. The interest of the appellee in the slaves and boat was purchased by the appellants, who were not the plaintiffs in execution under which the sale took place, for the sum of two dollars. The appellee was mortgagor in possession of the property in controversy at the time of sale, and his equity of redemption was foreclosed during the pendency of this suit. The appellants having failed in their action, damages was assessed against them to the amount of five hundred and twenty-four dollars. After judgment, they appealed to this court.

The only questions that have been raised upon the record, are whether the appellants can maintain this action, and whether the appellee, Stemmons, being the defendant in execution, is not estopped from setting up the defence that he had no vendible interest in the property in controversy, or at least none such as was subject to sale under an execution.

It was a principle of the common law, steadily maintained, that an equitable interest in chattels could not be sold under execution. A sheriff must actually seize the property on a fi.fa. before he can sell. This was a requirement of the common law, and it has been sanctioned by our statute. The great sacrifice resulting from sale of the such in *446 terests, has caused their prohibition. The interest of the debtor may be great or small, and as it is uncertain what will be realized by the purchase,there is almost invariably a ruinous sale. This very case demonstrates the impolicy of such transactions. Here is a sale of an interest in property for two dollars, and that property not having been delivered by the sheriff, has given rise to this vexatious and protracted litigation. Such will always be the case when there is a departure from first principles. Our statute expressly subjects equitable interests in land to sale; but not equitable chattel interests. At law, after forfeiture, the mortgagor has no interest in the chattels mortgaged. The right of redemption is a mere chose in action; not the subject of the levy and sale upon execution. The interest of the mortgagor, if definite and determinate, however limited, may be sold under execution; but a mere holding at the will of the mortgagee is not the subject of a sale. It does not comport with the dignity of the law, that such evanescent interests should he the subject of sale. It is unwarrantable interference with the rights of others. A levy by a sheriff on a slave, might frequently cause his escape. Why should the law suffer the property of a man to be sold, on an execution against another? Such interference, must prove injurious to the rights of the true owners. The creditor is not without his redress; he may, by suitable proceedings, ascertain the precise interest his debtor has in property, and then subject it to sale when there can he no sacrifice.

The authorities cited do not warrant the inference, that a debtor is estopped from availing himself of the want of property in the subject of sale, in an action against himself by the purchaser at such sale. The rule prohibiting a sale of the equity of redemption under execution, is designed to protect the property of the debtor from sacrifice; to prevent gambling about uncertainties, and such being its aim, there is a propriety in suffering the debtor to avail himself of this defence.

The damages assessed against the plaintiff, were for the use of the property. The jury have found that they have been benefited so much by the use of the property, which they wrongfully took from the defendant. It has been ascertained that they were not entitled to the property; its; value to them is deemed to be worth so much, there is then no injustice in making them pay the amount they nave been benefited by its employment. Where would be the justice, in permitting them for the sum of two dollars to hold on to the damages assessed by the jury.

The other judges concurring, the judgment will be affirmed.