Browne v. Sanders

Citations

• 115 Miss. 757
• 76 So. 645

Syllabus

<p>Mortgages. Foreclosure sale. Surpltis. Recovery.</p> <p>Where á bill was filed by a husband and wife charging that they executed a trust deed to secure a debt to defendant who on foreclosure, bid in the property for an amount greater than the debt, and that the sale was made subject to a prior deed of trust of an association and asking judgment for the surplus, and the defendant answered that he bid in the property under an arrangement by which he was to bid for them and take up the debt to the association, and there was evidence, that the trustee made the sale under the understanding as contended by the defendant and that a contract was signed by defendant and the husband pursuant to such arrangement and there was also evidence that the husband arranged, with defendant to buy the property for him and that there was no such understanding until after the sale, and there was no evidence conveying knowledge of this arrangement to the wife except that the husband usually attended to the wife’s business. In such case judgment for the wife for one-half of the surplus was erroneous, the chancellor either should have set aside the sale to defendant as being made under a mistake of .fact or else should have held defendant to his bid and allowed both the husband and wife to recover the difference, and charged them with the rent between the time of sale and judgment and given defendant possession of the property by decree.</p>