Brown v. Winter & Sherry

Baldwin, J. delivered the opinion of the Court—Terry, C. J. concurring.

Ejectment for a lot in Jackson.

Sloan & Bowman owned this property in 1854, and on the 14th of August of that year, they executed a mortgage on it to one E. M. Howard, to secure one thousand five hundred dollars. Afterward they executed another mortgage to the plaintiff, Brown, on the same property. Later—in 1855—Sloan conveyed his interest in the property to Yolney Smith—the deed declaring that the interest in the real estate sold was subject to the two mortgages. In October, 1855, Smith sold to the defendant, Winter, the deed containing the same recital as the last. In February, 1856, a judgment or decree of foreclosure was rendered in favor of Howard on this first mortgage, and the property was sold under it. Winter, the defendant, became the purchaser under the Sheriff’s sale, and in due time obtained his deed and was let into possession. In June, 1856, a foreclosure of the second mortgage was had. Plaintiff, Brown, became the purchaser, and in March, 1857, obtained a deed, and now on this title brings his suit against the first purchaser.

The Appellant contends that Winter having purchased before foreclosure of Sloan’s vendee, (Smith,) subject to the second mortgage, (Brown’s,) he stood in the position of Sloan; and that when the mortgage of Brown was foreclosed, and Brown became the purchaser, he acquired the title.

But the Appellant’s argument, though quite plausible in itself, and deriving apparently some countenance from the cases he cites, does not support the case now before us. If the plaintiff has any remedy on the facts in the agreed case, it is very clear it is not by a common law action. The defendant tracing his title through the first mortgage, and foreclosure of it at Sheriff’s sale, and being in possession, cannot be dispossessed in ejectment, upon the facts set up by the plaintiff. It may be true that the defendant, by his purchase of the equity of redemption, bound himself to pay the mortgagor’s debt, as he bought subject to the mortgage; but this obligation ran to the first mortgagor himself, and we do not see how any one else could enforce it. The mortgagee had no direct claim upon this vendee to pay this money; he certainly had a right to go on the land and sell it for [34]the payment of the mortgage debt, and the purchaser at the sale would get the legal title. That purchaser was "Winter. The plaintiff says that Winter assumed to pay this first mortgage debt, and therefore his purchase was no more than a payment of the first mortgage; and this first mortgage being thus paid, then the property was alone subject to the last. But the error of this argument is in assuming that, because Winter was bound to pay the debt, he had not a right to pay it by a sale and purchase of the mortgaged property. Neither Sloan or Howard objected, for all that appears, and we do not see that Brown can. It is true that Brown says that Winter also assumed to pay Ms mortgage, and bought subject to it also. If he can maintain this pretension, he can file his bill to charge the land with his debt in the hands of Winter, holding Winter as Trustee of the legal title for his benefit.