This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Formerly, in England, the mortgagor's interest being regarded as purely equitable, it was not subject to execution for his debts,64 and such may still be the law as recognized in one or two states.65 In most all jurisdictions, however, at the present time, the mort433, 89 Am. Dec. 90; Harris v. Eannon, 78 Ky. 568; Knoll v. New York, C. & St. L. Ry. Co., 121 Pa. St. 467, 1 L. R. A. 366, 15 Atl. 571; Franks v. Cravens, 6 W. Va. 185. See Verner v. Betz, 46 N. J. Eq. 256, 7 L. R. A. 630, 19 Am. St. Rep. 387, 19 Atl. 206; Edler v. Hasche, 67 Wis. 653, 31 N. W. 57.
60. Farrant v. Lovel, 3 Atk. 723; Kinkead v. Peet, 153 Iowa, 199, 132 N. W. 1095; Youle v. Richards, 1 N. J. Eq. 534, 23 Am. Dec. 722; Givens v. McCalmont, 4 Watts (Pa.) 460.
61. Sandon v. Hooper, 6 Beav. 246; Perdue v. Brooks, 85 Ala. 459; Whiting v. Adams, 66 Vt. 679, 25 L. R. A. 598, 44 Am. St. Rep. 875 30 Atl. 32.
62. Russel v. Smithies, 1
Anstr. 96; Wragg v. Denham, 2 Younge & C. 117; Dexter v. Arnold, 2 Sumn. 108, Fed. Cas. No. 3,858.
63. Hamilton v. Griffin, 123 Ala. 600, 26 So. 243; Arnd v. Arnling, 53 Md. 192; Atwood v. Moose Head Paper & Pulp Co., 85 Me. 379, 27 Atl. 259; Watkins v. Kaolin Mfg. Co., 131 N. C. 536, 60 L. R. A. 617, 42 S. E. 983; Van Dyke v. Grand Trunk R. Co., 84 Vt. 212, Ann. Cas. 1913A, 640, 78 Atl. 958.
64. Plunket v. Penson, 2 Atk. 290; Scott v. Scoley, 8 East. 497; 4 Kent's Comm., 160; 2 Freeman, Executions (3rd Ed.) Sec. 190.
65. Such is apparently the law in Tennessee. Wilkins v. Johnson - (Tenn. Ch. App.), -, 54 S. W. 1001.
Gator's interest is so subject,66 this being in some states by force of express legislation to that effect, in others by reason of legislation subjecting the debtor's equitable as well as his legal interests to execution. The tendency of the courts, even in states where the legal title is for certain purposes in the mortgagee, to regard the mortgagor as the actual owner, has no doubt contributed to this result. In states where the mortgagee is regarded as having a mere lien, and no title, there could not well be any question as to the liability of the mortgagor's interest to execution.
As the interest of a mortgagor is ordinarily subject to execution, even though the legal title is regarded as vested in the mortgagee, so the interest of one who has made a conveyance in trust to secure a debt has, in a number of jurisdictions, been regarded as so subject.67 In Ohio it has been decided that the interest of the grantor in a deed of trust is subject to execution, when the conveyance in trust is subject to a con-dition that it shall become void upon payment of the
66. Gassenheimer v. Molton, 80 Ala. 521, 2 So. 562; Turner v. Watkins, 31 Ark. 429; Punderson v. Brown, 1 Day (Conn.) 93, 2 Am. Dec. 53; Harwell v. Fitts, 20 Ga. 723; Finley v. Thayer, 42 111. 350; Clinton Nat. Bank v. Man-warring, 39 Iowa, 281; Lord v. Crowell, 75 Me. 399; Cushing v. Hurd, 4 Pick. (Mass.) 253, 16 Am. Dec. 335; Livermore v. Boutelle, 11 Gray (Mass.) 217, 71 Am. Dec. 708; Wiggin v. Hey wood, 118 Mass. 514; Carpenter v. Bowen, 42 Miss. 28; Trimm v. Marsh, 54 N. Y. 599, 13 Am. Rep. 623; Mayo v. Staton, 137 N. C. 670, 50 S. E. 331; Farmers' Bank v. Commercial Bank, 10 Ohio, 71; Garro v. Thompson, 7 Watts (Pa.) 416. In New Hampshire the statute makes special provision for a levy on and sale of the "right to redeem mortgaged real estate." Pub. St., Ch. 233, Sec. 19. The mortgagor's execution creditor may, nevertheless, levy upon the mortgaged land as if not mortgaged, but in such case the land must be set off to him without deducting from its value on account of the mortgage, though it remains subject thereto in his hands. Dunbar v. Starkey, 19 N. H. 160; Hovey v. Bartlet, 34 N. H. 278. See Bartlett v. Gilcreast, 72 N. H. 145, 55 Atl. 189.
67. Turner v. Watkins, 31 Ark. 429; Coe v. Johnson, 18 Ind. 218; Cook v. Dillon, 9 Iowa, 407, 74 Am. Dec. 254; Waller v. Todd, 3 Dana (Ky.) 503. 28 Am. Dec. 94;
3 R. P.- 13 debt secured thereby, while not so subject if there is no such condition, but merely a power in the trustee to sell on default, the grantor having, in the latter case, rights of an equitable character only.68 And in Georgia the interest of one who has made a "security deed" is exempt from execution.69
As to the case of a conveyance absolute in form, but intended as security for a debt, it has in two or three states been decided that the interest of the grantor, being in effect the same as that of the mortgagor in the case of an ordinary mortgage, is, as is the latter, subject to execution.70 In Massachusetts, on the other hand, the interest of the grantor in such a conveyance is held not to be within the statute authorizing a levy on "rights of redeeming mortgaged lands," and on lands conveyed to a third person "on a trust for the debtor, express or implied, whereby he is entitled to a present conveyance."71 And in New Jersey, since such a conveyance can be shown to be intended as security in a court of equity only, the grantor has an equitable interest only, which is not subject to execution.72
That the execution creditor is the person who holds the mortgage is immaterial, provided the execution is not for the purpose of collecting the debt secured by the mortgage. In other words, the holder of the mortgage claim, if he also holds another claim against the owner of the mortgaged land, has the same right as would any other creditor to reduce this latter
Carpenter v. Bowen, 42 Miss. 28; Mayo v. Staton, 137 N. C. 670, 50 S. E. 331; Wright v. Henderson, 12 Tex. 43; Bartles & Dillon v. Dodd, 56 W. Va. 383, 49 S. E. 414. And see cases cited post, note 70.
68. Martin v. Alter, 42 Ohio St. 94.
69. Shumate v. McLendon, 120 Ga. 396, 48 S. E. 10.
70. McConeghy v. McGaw, 31 Ala. 447; Smith v. Beattie, 31 N. Y. 542; Fredericks v. Corcoran, 100 Pa. St. 413; Flynn v. Holmes, 145 Mich. 606, 11 L. R. A. (N. S.) 209, 108 N. W. 685.