Edwards v. Fitzhugh

New Mexico Supreme Court December 17, 1913

Edwards v. Fitzhugh, 18 N.M. 424 (N.M. 1913)

137 P. 582

Mechem

Opinion of the Court

OPINION OF THE COURT.

MECHEM, D. J. —

1 The appellant’s claim to the fund is put upon one ground, viz: that it is- a surplus, of the foreclosure sale remaining after the satisfaction of the mortgagedebts, and as such belongs to him as mortgagor and owner of the equity of redemption.

Although the appellee asked that the judgment be set aside and corrected, this was not done and the judgment remains in full force and effect. The judgment is con-, elusive as to the amount of the mortgage debts. As far as the record shows, the property was sold for less than the amount of the mortgage debts,-interest, attorney’s fees and costs. Therefore there is no surplus. Such being the foundation of apjtellant’s claim to the fund in- controversy, the court did not err in denying it.

2 As the appellant has no right to the fund, he is not interested in its disposal and for that reason the assignment of error to the finding of the court that the appellee is entitled to the fund, is not considered.'

The judgment of the lower court is affirmed.

Reference

Full Case Name: J. S. EDWARDS, Plaintiffs THE CLOVIS NATIONAL BANK v. J. S. FITZHUGH
Cited By: 3 cases
Status: Published
Syllabus: SYLLABUS (BY THE COURT) 1. A’s property was sold under foreclosure judgment, to satisfy the mortgages of B Senior and C Junior mortgages; C at the sale bid in the property for the sum pf the mortgage debts, interest, and costs as shown by the judgment. After the sale B discovered that he had been overpaid. Such overpayment was caused by an erroneous calculation of hr erest B paid the excess into court. Held that as long, as the judgment remained in force, the sum paid by B into court is not a surplus of the foreclosure sale, remaining after the mortgage debts were satisfied, and as such the property of A as mortgagor and owner of the equity of redemption. P. 426 2. Where the appellant has no interest in a sum of money, an assignment of error that the trial court erred in its • disposition of such sum, will not be considered on appeal. P. 426