Purdy v. Irwin
Before: Cope
Synopsis
Plaintiff has a deed of property from H. and P. Subsequently, N., execution creditor of H. and P., causes the Sheriff to levy on the property. Plaintiff files his bill to restrain the sale as casting cloud on his title. Court below found plaintiff’s deed to be in effect a mortgage: Held, that the bill must be dismissed; that the purchaser at the Sheriff’s sale would only acquire the interest of the judgment debtors, H. and P.; that plaintiff’s rights as mortgagee would be unaffected by the sale, and hence there is no necessity for equity .to interfere in his behalf.
Cope, J. delivered the opinion of the Court Baldwin, J. and Field, C. J. concurring.
The decree in this case must be reversed. The rights of the [351]plaintiff cannot be impaired by a sale under the Nesbit judgment. The purchaser at that sale will only acquire the interest of the judgment debtors, and there is no necessity for equitable interference on behalf of the plaintiff. His rights as mortgagee will stand upon the same footing after the sale as they did before. Judgment reversed, and bill dismissed.
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