Ellis v. Fairbanks

Citations

• 38 Fla. 257

Syllabus

<p>1. Where lands are mortgaged to secure a debt, and a part of said lands are subsequently sold and conveyed by the mortgagor, the portion remaining unsold is primarily liable under the mortgage. A release subsequently given by the mortgagee to the mortgagor of the part unsold without the assent or agreement of the purchaser will not prejudice the rights of such purchaser of the part which was sold, if the mortgagee gave such release with knowledge of the rights and equities of the purchaser. If the part released is sufficient to satisfy the entire, debt, the mortgagee can not resort to the part which has been sold, but such release operates as a discharge of the lien to the extent of the value of the land released.</p> <p>2. The fact that the remedy at law is barred by the statute of limitations upon promissory notes secured by a mortgage under seal, does not affect the lien of the mortgage. Such lien is only affected by the longer term which, by the statute, is applied to sealed instruments. The lien of such mortgage can be enforced not only as between the mortgagor and mortgagee, but also as to purchasers of the mortgaged land from the mortgagor.</p>