Zeller v. Henry
Zeller v. Henry
Opinion of the Court
Opinion by
Reuben L, Light and his wife Susanna Light mortgaged their farm of one hundred and twenty-three acres in Lebanon county to secure the debt of the husband to Christian Henry, mortgagee. The mortgage was a first lien. The husband owned one seventh of the farm and the wife six sevenths of it. At a sale upon a judgment against the husband his interest in it was purchased by David W. Zeller, with notice that the wife joined in the mortgage as surety. After he received a deed of the land so purchased it was levied upon and advertised for sale by virtue of a writ issued upon a judgment obtained on the mortgage. A sale on this writ would have passed to the purchaser the title which Reuben Light had when he executed the mortgage, and extinguished the equity of redemption which Zeller acquired by his purchase. To prevent such a result the latter proposed to buy the mortgage, and, on the refusal of the mortgagee to sell it, paid the mortgage debt with interest and costs to the sheriff, and served a notice on him to pay the money into court. He then moved for and obtained a rule on the
The specification of error is overruled.
The order discharging the rule to show cause is affirmed at the costs of the appellant.
Reference
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- Syllabus
- Suretyship — Mortgage—Husband and wife — Subrogation. If the land oí a wife is mortgaged for the husband’s debt, a subsequent judgment creditor of the husband cannot claim that the mortgagee shall proceed first against the property of the wife, nor can he claim to be subrogated to the mortgagee’s security against the wife. The wife is but a surety to the mortgagee for the husband. A husband owned one seventh of a farm and his wife six sevenths of it. Both husband and wife joined in a mortgage of the whole farm to secure a debt of the husband. A judgment was subsequently entered against the husband, and his interest in the land was sold, with notice that the wife had joined in the mortgage as surety only. After a deed was made to the purchaser, judgment was obtained upon the mortgage. To prevent a sale the purchaser of the husband’s interest paid the mortgage debt with interest and costs to the sheriff, who paid the money into court. The purchaser then obtained a rule to show cause why the mortgage should not be marked to his use, so that he could proceed against the wife’s interest to reimburse him for his loss. Held, that the rule was properly discharged, as the purchaser was not entitled to subrogation against the wife who was merely a surety for the mortgage debt.