Bainbridge v. Woodburn

Citations

• 52 Miss. 95

Syllabus

<p>^Mortgagor and Mortgagee : Mortgaged property devised by will of mortgagor. What rights are affected by foreclosure of the mortgage.</p> <p>J. W. and J. R. W. purchased the lands of E. in 1853, took a deed, and executed a mortgage on the land to secure the purchase money. In 1858 J. W. died, devising by will his interest in the land to his sons, L. W. and J. R. W. The will expressly charged his interest in the land with his debts, and declares them to be a lien on it. L. W. died, and his interest was cast upon J. R. W., to whom letters testamentary were granted. The creditors forced E. to foreclose his mortgage, when D. B. and O. M. Bell became the purchasers of the land. The bill seeks to have the land in the hands of B. treated as charged with a trust for the payment of notes of complainant and all other creditors to the extent of the interest of John 'Woodburn, and asserts the right to redeem by payment of the mortgage debt to E. Held, that the mortgage by J. W. and J. R. W. to E. was paramount to the claims of the creditors of J. W., although their demands were made a charge on the land by his will; that the purchasers at the sale under the decree to foreclose acquired the title of the land in the exact position it was in at the date of the mortgage, unaffected by any charge upon it by the subsequent acts of the mortgagors; that the purchasers were not chargeable with notice of the claim of creditors against the land, and that the creditors of J W., deceased, were not necessary parties to-the suit to foreclose the mortgage held by E.</p>