Newby v. Fox

Citations

• 90 Kan. 317
• 133 P. 890
• 1913 Kan. LEXIS 212

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Marshaling Securities — Rights of Senior and Junior Mortgagees. The owner of a tract' of land, who gives a mortgage upon it and then conveys it in consideration of the buyer assuming the mortgage debt and giving him a note for the rest of the purchase price, secured by a second mortgage on a part of the tract, is not precluded by the fact that he is personally liable for the payment of the first mortgage from requiring a marshaling of securities, so that the parcel of land on which he has no lien shall be appropriated to the payment of the first mortgage before the remainder of the tract is resorted to for that purpose.</p> <p>2. - Samé. In the situation stated the right to a marshaling of securities is not defeated by the sale of the tract which is subject only to the first mortgage to a purchaser for value, who from the record has notice of both mortgages, and of the assumption of the first mortgage debt by the 'maker of the second mortgage, although such sale is made before such right has been asserted.</p> <p>3. - Same. In that situation the rights of one who has purchased the first mortgage are not diminished by the fact that such purchase was made at the instance and for the benefit of the owner of the tract covered only by that mortgage. • •</p>