Hitchler v. Citizens' Bank
Hitchler v. Citizens' Bank
Opinion of the Court
delivered the opinion of the court.
The mortgage executed to secure the debt of Black is not void merely because it includes the sawlogs which from time to time might be brought on the mortgaged premises. There is no authority reserved by the deed to the mortgagor to sell these logs or the lumber into which they might be converted. It would not be a violent presumption to indulge that such was the understanding of the parties, but it does not unmistakably appear that it was,
But it is manifest that the appellants could by no possibility have been injured or delayed in the collection of their debt by reason of this mortgage, for the mortgage by its terms was to become forfeited in thirty days from the date of its execution, while the debt due from Diggs to complainants arose from a loan of money made years before, and to be paid years after that time; so, whether the sawlogs were or were not included in the mortgage to secure Black, or whether they were or were not to be held by the mortgagor was immaterial to complainants, since in no event would they have been in the possession of the common debtor when their debt matured.
Complainants had no sort of interest in the arrangement made between Black, the mortgagee, and Borden and Elder, the purchasers under the sale made by the trustee Mclnnis, by which Borden and Elder were permitted to use in lieu of cash five thousand dollars of the money secured by the mortgage. Black himself might have appeared as a bidder at that sale and used the whole of his debt as cash in settling with the trustee, and what he might have done he could by contract permit Borden and Elder to do. We see nothing in the record to invalidate that sale, and by it, if valid, the lien of complainants’ junior mortgage was destroyed. Borden and Elder having thus acquired a title superior to the mortgage of complainants, they are no longer interested or competent to controvert the title of the appellee, who claims to be the owner of the property through the title of Borden and Elder. If appellees are the assignees of that title by valid conveyances, they are entitled to protection because they are owners. But if they are not the holders of that title, they are protected in this suit because the complainants are strangers and cannot call on them to exhibit or defend their chain of title.
The decree is affirmed.
Reference
- Full Case Name
- Mary Hitchler v. Citizens' Bank
- Cited By
- 1 case
- Status
- Published
- Syllabus
- 1. Mortgage. Mortgagee left inpossession of personal property. Without reservation of power of sale. A mortgage on a tract of land and a saw-mill thereon, and also on “ any and all logs, timber, wood, or other articles belonging to the mortgagor on or near the premises, whatever the number and amount may be, as well as any and all such logs and timber that may be hereafter obtained and had for the purpose of replacing or replenishing those now on hand that may be sawed into lumber, or otherwise used by the saw-mill of the mortgagor on said land or premises,” is not rendered void on its face by the provision quoted, together with one which permits the mortgagor to remain in possession of the mortgaged property, there being no express reservation by the mortgagor of the right to sell the logs or lumber. Britton & Maiyson et al. v. Oriswell, ante 394, cited. 2. Same. Creditors holding different securities. Bight of one to attack the other. Case in judgment. In 1869 D. borrowed a sum of money from from H. and F., minors, to be repaid when they arrived at majority. On the 2d of May, 1872, D. mortgaged his interest in a certain saw-mill to B. to secure a debt due to B., and which would fall due within thirty days thereafter. The condition of forfeiture in this mortgage was failure to pay the debt at maturity. At the foreclosure sale under this mortgage of B.’s, 0. became the purchaser. On the 8th of May, 1872, D. executed another mortgage on the same property to H. and F. to secure the debt due them as above stated, and which would not then be due for several years. In a suit by JET. and F., they now being of age, against C., to foreclose their mortgage, H. and F. cannot attack the mortgage in favor of B. because it permits the mortgagor to retain in his possession and use certain of the mortgaged property consumable in such use, since that mortgage did not contemplate that the property would be in the mortgagor’s possession when the debt to H. and F. should mature. 3. Same. Agreement between mortgagee and purchaser under mortgage. Attacked by jv/nior mortgagee. And if in such case there was an agreement between B. and 0., by which C. was to bid in the property and secure the amount so bid by a mortgage on this and other property, though the original mortgage required that the sale thereunder should be for cash, H. and F. have no such interest as entitles them to attack the sale because of such agreement and of the fact that C. paid no cash on his purchase. 4. Mobtgage. Purchase of title under. Junior mortgagee a stranger. After a valid sale under a senior mortgage, a junior mortgagee cannot, by a suit to foreclose his mortgage on the same property, compel one who claims to hold the title passed by such sale to appear and make proof thereof, the complainant being a stranger thereto.