Hitchler v. Citizens' Bank

Citations

• 63 Miss. 403

Syllabus

<p>1. Mortgage. Mortgagee left inpossession of personal property. Without reservation of power of sale.</p> <p>A mortgage on a tract of land and a saw-mill thereon, and also on “ any and all logs, timber, wood, or other articles belonging to the mortgagor on or near the premises, whatever the number and amount may be, as well as any and all such logs and timber that may be hereafter obtained and had for the purpose of replacing or replenishing those now on hand that may be sawed into lumber, or otherwise used by the saw-mill of the mortgagor on said land or premises,” is not rendered void on its face by the provision quoted, together with one which permits the mortgagor to remain in possession of the mortgaged property, there being no express reservation by the mortgagor of the right to sell the logs or lumber. Britton & Maiyson et al. v. Oriswell, ante 394, cited.</p> <p>2. Same. Creditors holding different securities. Bight of one to attack the other. Case in judgment.</p> <p>In 1869 D. borrowed a sum of money from from H. and F., minors, to be repaid when they arrived at majority. On the 2d of May, 1872, D. mortgaged his interest in a certain saw-mill to B. to secure a debt due to B., and which would fall due within thirty days thereafter. The condition of forfeiture in this mortgage was failure to pay the debt at maturity. At the foreclosure sale under this mortgage of B.’s, 0. became the purchaser. On the 8th of May, 1872, D. executed another mortgage on the same property to H. and F. to secure the debt due them as above stated, and which would not then be due for several years. In a suit by JET. and F., they now being of age, against C., to foreclose their mortgage, H. and F. cannot attack the mortgage in favor of B. because it permits the mortgagor to retain in his possession and use certain of the mortgaged property consumable in such use, since that mortgage did not contemplate that the property would be in the mortgagor’s possession when the debt to H. and