Waters v. Bossel

Citations

• 58 Miss. 602

Syllabus

<p>1. Mortgage. Foreclosure by junior mortgagee and grantor. Stipulations by grantee. Rights of senior mortgagee.</p> <p>B., owning several lots of land encumbered with a mortgage to A. for $3,000, due by the promissory notes of B., conveyed the same to 'W. for $10,000, of which $1,000 were paid in cash. The deed, which was signed and acknowledged by W. as well as by B., contained a stipulation binding ~W. “ to pay the sum of $3,000 in place and stead of B., by paying at maturity ” the notes held by A. And the deed further recited that, “in liquidation of the balance of $3,000” of purchase-money, W. had granted to B. an annuity or annual rent-charge of $300, to issue out of the land, to be held for and during her life, and to be payable in instalments of $25 per month thereafter. A special mortgage was reserved in the deed to secure the payment of the unpaid purchase-money, and the performance of the agreements and promises therein contained. Some years after this transaction B. filed a bill in chancery against W., alleging a failure of the latter to pay the debt to A. and the annuity to the complainant, praying for an account of the amounts due, and for a sale of the land to satisfy the same. W. answered, denying any failure to pay the annuity, and stating that the interest on the debt to A. had been fully and regularly paid, and that he was satisfied for payment of the principal to be' deferred. A decree was rendered against W. for the amount found due on the debt to A., and for the $3,000 of purchase-money in liquidation of which the annuity was granted, with interest after default in payment of the annuity, less the payments made on that account; and the sum of these amounts W. was required to pay to B., or, in default thereof, the direction was that the land should be sold to pay the same, subject to the mortgage of A. From this decree W. appealed. Held, that the decree was erroneous in requiring W. to pay to B. the amount due A., leaving his demand unsatisfied