Kausler v. Ford

Citations

• 47 Miss. 289

Syllabus

<p>1. Chancery — lien.—The assignment of a note protected by a lien, expressly reserved in a deed conveying real estate, carries with it the lien so reserved.</p> <p>2. Same — novation.—The novation of a debt, or any part of a debt, secured by an express lien upon real estate, by the substitution therefor of a new note given by the vendee of the lien debtor, does not discharge the lion, but the security follows so long as the original debt, or any part of it, can be traced into the new note.</p> <p>3. Same — payment.—Before an express lien, reserved in a deed to real estate, as security for a debt, can be extinguished by the execution and delivery to the lien creditor of a note given by the vendee of the lien debtor, it must be shown that tho intent of tho parties, in putting the debt in the new shape, was to work an extinguishment.</p> <p>4. Same — successive sales. — If the lien debtor sell off at different times the encumbered property, it will be liable to the creditor holding the lien, in the inverse order of the alienation; and the first purchaser may, through the chancery court, remit the creditor to the property of purchasers subsequent to himself, and forco him to obtain satisfaction, beginning with the property of the last purchaser; and the property of the first purchaser can only be subjected to the payment of the balance left after the property of all the purchasers has been exhausted.</p> <p>5. Same — case in judgment. — B. agreed to purchase lands from 3). and F. for $17,000, part cash and balance in four annual installments, on the 3d February, 1857, the vendors retaining the lien to secure the payment of the purchase money. The agreement was consummated in February, 1858, by the execution and delivery of a deed and notes for the deferred payments. D. and F. retained and reserved, upon the face of their deed, an express lien for the purchase money. The deed was properly acknowledged and recorded. In August, 1859, B. sold a half-interest in the proper