Cary v. Folsom

Ohio Supreme Court
Cary v. Folsom, 14 Ohio St. 365 (Ohio 1846)
Read

Cary v. Folsom

Opinion of the Court

Read, J.

The question is, out of what part of the premises shall the complainant be compelled first to resort for the satisfaction of his mortgage?

It is admitted the mortgage is the oldest and preferable lien, and covers the whole premises.

*368On October 11, 1837. Webb and Averill recovered a judgment against Folsom for $387.73. The lien upon the land is kept alive.

On said 11th day of October, the president, directors, and company of the Bank of Wooster, recovered a judgment for the sum of $7,402.20, and the west half of said premises were sold on execution on October 7/1838, and convoyed to the president, directors, and company of the Bank of Wooster.

There is no controversy between these judgments.

On April 13, 1838, Folsom and wife conveyed the east half of the mortgaged promises to the Commercial Bank of Lake Erie, by a warranty deed. »

It is a well-established principle that where one person has a lien upon entire premises, and other subsequent liens or interests have been acquired on different parts of the same promises, the lien upon the whole premises shall be enforced against the *last-acquired interest first, and thus prevail to subject each successive junior right first, until the whole lien be satisfied.

In accordance with this principle, the east half of said premises will be first subjected to satisfy the mortgage, and if that be not infficiont, then the west half.

Decree may be taken accordingly.

Reference

Full Case Name
Ira B. Cary v. Ezekiel Folsom and others
Status
Published