BARRON, MEADE & CO. vs. PAULLING

BARRON, MEADE & CO. vs. PAULLING. [BILL IN EQUITY BY ASSIGNEE FOR REDEMPTION.] 1. Bents and profits. — In taking an account of the mortgago debt, be» tween tbe mortgagees an chirp .assignee of the equity .ofredemption, the former are chargeable oply with the amount erf rents actually received by them, unless they liatye hfien guilty of fraud or willful neglect; and where rents ai'e received by one of tho mortgagees individually, under a judgment in his.favor against tbe assignee, the amount so received by him must he credited on tbe mortgage debt, unless it is shown to have been received by him by virtue of a right independent of the mortgage. 2. Conclusweness of judgment. — »&. judgment in an action of trespass to try titles, which recites tl>at ,i¡he defendant has voluntarily abandoned the possession of the land, with all claim of title thereto; that the plaintiff has taken possession; and that thereupon came a jury, who assessed-the plaintiff’s damages; and by which it is considered by the court, that th,c plaintiff rpcover of the defendant ¡the damages ,so assessed, — does not preclude the defendant, in a subsequent chancery suit to redeem the land, instituted by him as an assignee of tbe equity of redemption, from insisting that the recovery was based on amort, gage to,a partnership, of which,the plaintiff was a member,.and that the mortgagees.are therefore chargeable with the,amonnt received by tbe plaintiff under tbe judgment. 3. Costs at law, and attorney's fees. — The mortgagee?,are nob chargeable with the amount of costs incurred and paid by the assignee in an unsuccessful attempt to defend the possession at law, or to resist the collection of rents and profits; nor can they charge the assignee with their own attorney’s fees. rf. Statutory peiialties aepountatyefop as.reqts andpwfits. — fhemortgage^ having recovered a judgment against the assignee of the equity of redemption, in a statutory action of debt, for cutting timber on the mortgaged lands, the assignee is entitled to have the amount paid by him under the judgment credited on the mortgage debt, and to have the judgment perpetually enjoined on discharging the mortgage debt.,, 5. Conehmveness of judgment by cement. — Where the plaintiff consents of record, on motion for a new trial by the defendant, that the verdict may he reduced to a specified sum, for which a judgment is thereupon rendered in his favor; and the judgment further recites, “that this agreement between the parties is made and entered into as a compromise and final settlement of the matters and tilings in controversy in this suit,” — the defendant is not thereby precluded, in a subsequent chancery suit, instituted by him as an assignee of the equity of redemption, against the plaintiff as mortgagee, from insisting that the amount paid hy him under the judgment shall be credited on the mortgage debt. Appeal from tile Chancery Court of Marengo. Heard before the Hon. James B. Clark.- The'material Facts of this- case, stated in the order of their occurrence, are these: 111' August, 1846, one James McNaughten executed a mortgage, by which he conveyed a tract of land to Barron, Meade & Co., to secure the payment of a promissory note therein described, and which contained a power of sale in the event of the non-payment •of the note on or before the 1st January, 1847. The land was sold by the sheriff, on the first Monday in January, 1849, under a venditioni exponas issued from the circuit ■court, which was founded on the levy of sundry executions on judgments rendered by a justice of the peace; at which sale, Lucien Meade, one of the partners composing the firm «of Barron, Meade Co., became the purchaser, and received the sheriff’s deed. In May, 1851, Meade instituted an action of trespass to try titles, against Win. K. Paul-ling, to recover the possession of the land, with damages for its detention; and in May, 1853, recovered a judgment, of which the following is a copy: “This day came the parties, by their attorneys; and it appearing to the satisfaction of the court, that the defendant has voluntarily abandoned the possession of, and all claim of title to the premises sued for, and that the said plaintiff has taken possession thereof; thereupon came a jury,” &c.', “who, being duly elected,” &c., “well and truly to assess the plaintiff’s damages for the detention of the premises and the trespass thereon, upon their oaths do say, that they assess plaintiff’s damages .-at the sum of two hundred dollars. It is therefore considered by the court, that the plaintiff recover of the defendant the said sum of two hundred dollars, his damages assessed by the jury as aforesaid, and also his costs of suit.” In the spring of 1851, (the precise time is not shown by the record,} Meade instituted an action at law against Paulling, to recover the statutory penalty for cutting down trees on the mortgaged land ; and the declaration also contained a count for money had and received. From the defective statement of the pleadings contained in the record, it is impossible to say on what issue the cause was tried. At the November term, 1853, a judgment, on the verdict of a jury, was rendered for the plaintiff, for fifteen hundred dollars damages ; hut, on a subsequent day of the term, the defendant having moved for a new trial, the following judgment was rendered in the cause; “ Came the parties, by their attorneys ; and the defendant moves the court for a new trial, because the finding of the jury is excessive, and on the ground of surprise,” &c. j “ and the motion being beard and considered by the court, the said plaintiff now here agrees and consents, that the verdict of the jury, and the judgment of the court in this cause, be reduced to three hundred and fifty dollars; and the said defendant consents, that judgment be entered against him, for said sum of three hundred and fifty dollars; and this agreement between the parties is made and entered into as a compromise and final settlement of the matters and things in controversy in this suit. Thereupon, it is considered' by the court, that the verdict of the jury be reduced to the sum of three hundred and fifty dollars, and that said plaintiff recover of said defendant the said sum of three hundred and fifty dollars, and also his costs.” On the 11th March, 1854, Paulling filed his bill in equity, against Barron, Meade & Co., for a redemption of the mortgaged land, and an account of the rents and profits; claiming the right to redeem as assignee of the equity of redemption, and also as assignee of several of the judgments under which the land had been sold by the sheriff; and he also filed an amended bill, a few day afterwards, asking an injunction of the judgment which Meade had obtained against him, as above stated, for cutting trees on the land. The defendants demurred to the bill, for want of equity; and they also filed answers, in which they denied the complainant’s right to redeem, On final hearing, on pleadings and proof, the chancellor dismissed the bill; but his decree was reversed by this court, on appeal, at its January term, 1858, and the cause remanded j. the court holding, that the sheriff’s sale of the lands, at which Meade became the purchaser, was a nullity ; and that the complainant, as an assignee of the equity of redemption, might maintain a bill in equity to redeem.=*ri8ee ¡the case reported in 32 Ala. 9-12. At the March term, 1859, the cause was again submitted to ,the chancellor, who, without a reference, rendered the following decree: “ This .cause name on to be heard, on bill, answer, testimony, &c._; and> .upon consideration thereof, it is ordered, that the injunction heretofore granted be perpetuated. It is further ordered, th.at the complainant pay to the defendants the sum .of $317 43, with interest from this date. It is further ordered, that the defendant, within ten days after payment,of said sum, execute and deliver to the complainant a quit-claim deed to the land described in the bill. It is further ordered, that the defendants pay the costs of suit, and that execution may issue. The amount which appears to be due on the mortgage debt, is $723 59 ; and the amount due Faulting, .by reason of damages and costs on the judgment against him in favor of the defendants, is $406 16 ; which leaves a balance of $317 43.” From this decree each party appeals, and each assigns the decree as error. W. M, Brooks, for the defendants, Goldthwaite, Bice & Semple, contra. [MAJORITY — A. J. WALKER, C. J.] A. J. WALKER, C. J. -The bill in this ease is to be regarded as filed by the assignee of an equity of redemption, for the purpose of redeeming the mortgaged lands. — Paulling v. Barron, Meade & Co., 32 Ala. 9. It appears very, conclusively, that the mortgagees were never in possession of the laud, until the recovery in the action of trespass to try titles'by Meade against the complainant ; and we have no evidence that.either of them ever received any rent for the land after that- recovery. Lesueur, the only witness who testifies on the subject* deposes that, the houses and fences having-.gone into decay,' he,- as the agent of the defendants,- permitted the coroplainant-to have the place as. a pasture; and we infer from the testimony that the complainant paid no rent. Upon this state of the case, the defendants’ are not chargeable with'rents, other than those recovered in the action of trespassto try titles. The mortgagee is-only responsible, in- a suit to redeem by the mortgagor or his assignee, for rents-actually received, unless he has been guilty of fraud-or willful neglect. — 3 Powell on Mortgages, 939 a; 1 Hilliard on Mortgages, 418, § 3. The crediting of the mortgage debt with the amount of rents received by one of the mortgagees, Was proper. It is conceivable that a mortgagee might-have a right-to the rents and profits of the mortgaged landderived from a source extrinsic and independent*of the mortgage,- If a mortgagee were by virtue of such a right to-receive rents, the sum so received could not be appropriated in abatement of.the mortgage debt. In this case, the mortgagee in fact had- no right to the rents and profits, except such a3 the mortgage gave,-- But itos- said, -that the judgment for the- recovery of the land, and tbe>rents by way of damages for its detention, was rendered in favor of one of the mortgagees, against the defendant; ,that a right of action, resulting from the mortgage, appertained to the two mortagagees jointly ; that therefore a recovery by oüe mortgagee, by its intrinsic force, demonstrated that it was based upon a right independent of the mortgage; and that the complainant, being the party defendant to the judgment, Was estopped from controverting that inference from the judgment in favor of the single mortgagee. To this argument we can not assent. The judgment entry recites, that the defendant Voluntarily abandoned the possession of the land, and all claim of title to it; that the plaintiff had taken possession thereof p that thereupon, came a jury, who assessed the damages of plaintiff; and a judgment for the damages so assessed is rendered.. The court, in its considerakm est, adjudges nothing,, except that the plaintiff recover the assessed damages ahd costs ;• and the ascertainment by the verdict of the jury is not more extensive than the consideration of the court. The record, upon its face, is absolutely silent as to the source whence the -plaintiff derived Ilia claim. Judgments may be conclusive as to the facts necessarily involved in them. — Wittick v. Traun, 25 Ala. 317; Chamberlain v. Gaillard, 26 Ala. 504 ; Saltmarsh v. Bower, 34 Ala. 613. That the plaintiff in the judgment derived his claim to the damages recovered fronr-a source independent of the mortgage, is not necessarily* involved ih the judgment, or implied by it.- It-may as well comport with the supposition, that it was submitted to by»the defendant upon the idea that a right to recover'enured teethe plaintiff as a member of the partnership to which* the mortgage was given, or that the plaintiff had acquired-the interest of the other mortgagee. - The inference attempted to he forced upon the complainant!- from his submission-to-the assessment of damages,- -is not a necessary deduction, and he can not be precluded from" asserting the- contrary. As mortgagee, the defendant Mfeade had a-right to receive the rents and profits. We think his own answer-shows, that he had no other real right. - The pretense that-he had acquired a light by the-purchase at execution sale, is met with a fiat negation by the decision of this court when we before passed upon it, for that decision declares the sale invalid.— 32 Ala. 9. One of the mortgagees having, by virtue of the judgment, collected from the complainant rents and profits, iflie sum so collected is a proper credit on the mortgage (debt, in -taking the account of the same requisite to authorize a redemption. , * The court erred in crediting upon the mortgage debt the sum paid in discharge of the costs'adjudged against Paulling. We know of no principle, upon which either a mortgagor, or his assignee, can impose upon the mortgagee the burden of reimbursing costs, which may have been incurred in an unsuccessful attempt to defend the possession of the land, or resist the collection of rents and profits. The mortgagees are not entitled to have from the com.pkinant any ie,e.s which they may have paid their attorneys. We thipk a'permanent injunction of the judgment against ,;fhe .-complainant for cutting timber trees ought to have beeUigranted, in such a manner as to become operative upon tihe discharge of the mortgage debt, and the (Consummation of the ¡redemption by the complainant. A (Comparison mf the parts of the bill and answer which speak.of the judgment, leads ns to the conclusion, that, under-the rules of pleading, the fact that the judgment was founded on pepalti.es for cutting timber must be regarded as established. The mortgagee, standing by the law in the light of a bailiff for the mortgagor or his assignee, must be chargeable with whatever profit he received by virtue of his mortgage title. — 3 Powell on Mort. 946 ; 1 Hilliard on Mort. 417. Penalties for cutting timber from the mortgaged premises constitute a profit, with which one standing in the attitude of .a bailiff is chargeable. The plaintiff in the judgment had, in fact, no other title than that of mortgagee ; and, for reasons already stated in reference to another judgment, we decide, that the judgment founded upon the cutting of timber, in the name of one of the mortgagees, does not conclusively imply that the plaintiff had a title independent and extrinsic of his character of mortgagor,' If the plaintiff in the judgment were to receive payment of it, it would be appropriated by the law" to the discharge, pro tanto, of the mortgage debt; and therefore, if the complainant discharges that debt, the judgment ought to be perpetually enjoined, except as to the costs; but the perpetual injunction ought not to be operative, until the discharge of the mortgage debt. There was nothing in the settlement, upon which the reduction of the judgment was based, which precludes the complainant from setting up his equitable rights in this case. That settlement is restricted to the matters 4n controversy in that particular suit, which pertained to the legal, not to the equitable rights of the parties. On the appeal by the complainant, the chaqcellor’a decree is affirmed; on the appeal by the defendants, the decree is reversed, and the cause remanded.