Millsaps v. Bond

Citations

• 64 Miss. 453

Syllabus

<p>1. Moetg-ages. Senior and junior. Order of sale under former.</p> <p>In the foreclosure of a senior mortgage on lands, only a part of which are covered by a junior mortgage, the land not included in the junior mortgage should be decreed to he sold first, and a decree in such case directing that the land not embraced in the junior mortgage be first sold is erroneous and may be reversed upon the appeal of the junior mortgagee.</p> <p>2. Same. Right asserted in answer. Effect as to decree. Chancery practice. Case in judgment.</p> <p>B. filed a bill to foreclose a mortgage on two lots. M., who held a junior mortgage on one of the lots, answered and insisted that the lot not covered by his mortgage should be first sold. B. then moved to dismiss his hill as to the lot not covered by M.’s mortgage. This motion was not sustained, hut a final decree was entered ordering that the lot covered by both mortgages be sold, without any direction as to the other lot. M. appealed. B. here contends that M. did not object to the decree. Held, that complainant’s motion was properly not sustained, and as M. in his answer insists on his right in respect to the sale of the lots, it cannot be said that he did not object to the decree denying such right.</p>