Whitney v. McCoy

Attachment—Subsequent Mortgage eor Oweltt or Partition.—The interest of M., an undivided half, in a tract of land owned by him as tenant in common with S., was attached by A. Subsequently by a judgment of partition a specific portion of the tract was allotted to M.— she however, being required by the judgment—in order to equalize the partition, to execute a mortgage to S. upon her allotment for one hundred and eighty-five dollars. Afterwards the interest of M. in the tract allotted to her was sold under execution in the attachment suit, and A. became the purchaser and received his deed, and having been made party to a suit to foreclose the mortgage of S. claimed that his title was paramount to the mortgage.

Held: The plaintiff was entitled to have foreclosure of his mortgage upon whatever interest M. held in the premises in excess of the undivided one half held by her at the time of the levy of A. ’s attachment.