Sledge, McKay & Co. v. Obenchain

Citations

• 58 Miss. 670

Syllabus

<p>1. Mortgage. Change in form of security. Obligation of married woman.. Her death.</p> <p>On the 25tb of June, 1877, B. executed a mortgage on certain land owned by him, to secure a debt of $4,500 which he owed S. On the 6th of November, 1877; B., by a deed duly recorded, conveyed the same land to his wife, subject to the-mortgage to S. On the 12th of February, 1878, B. and wife sold and assigned to their children the rents and profits of this land for $900, which was to be paid to S. for-the account of B. On the same day they executed to their children a voluntary conveyance of the land, though it was not delivered, if at all, till October, 1878. On the 11th of June, 1878, B. was owing S. a balance of $1,091.33 on the mortgage debt and $2,144.16 unsecured, and gave his note for the aggregate amount due, and to secure the same he and his wife executed a mortgage on the land covered by the first mortgage. S., having no actual knowledge of the conveyance of the land by B. to his wife, and by them to their children, cancelled the mortgage of the 25th of June, 1877. B. and wife both died in the autumn of 1878. Their children paid to S. the $900, according to their agreement with their parents. In February, 1880, S. filed a bill to enforce the mortgage given by B. and wife on the 11th of June, 1878, if that could be done; and if not, then to enforce the mortgage given by B. on the 25th of June, 1877. Held, that the land cannot be subjected to the payment of the-$2,144.16, but may be subjected for the payment of the balance of the $1,091.33 of the first mortgage debt. For such balance the land is bound, (1) because-the first mortgage was not extinguished by the taking of the subsequent mortgage, which in the circumstances thereof was a mere change in the form of the security, not affecting innocent third persons; and (2) because Mrs. B. took the land subject, expressly, to the first mortgage to S., and while she could not ordinarily bind the corpus of her estate to secu