63 Miss. 616 | Miss. | 1886
delivered the opinion of the court.
The foreclosure sale under which the complainant purchased the
As between tlje complainant, Kelly, and the defendants, Martin and Brooks, this condition of things exists: the defendants are senior mortgagees (or trustees of the legal title with a charge ou the land) for the sum originally due from Butler to Martin, with legal interest thereon; Kelly has a second mortgage upon the land for the sum due from Butler to Kelly & Co., and Brooks and Martin, subject to these two mortgages, are the owners of the equity of redemption in the land. Kelly is not bound by the sales made to Shirley and Brooks, for he never assented thereto, and his rights cannot be affected by contracts to which he was not a party. On the other hand, he cannot recover from Brooks and Martin the rents and profits of the land for the time they have been in possession. He was qot entitled to them as against Butler while he was in possession of the land, and would not now be if he were yet the owner. He cannot, therefore, collect them as debts due to him from Brooks and Martin. Butler, having sold the equity of redemption, is not entitled to such rents as mortgagor, and because he is not they cannot be applied as credits on the debt which constitutes a prior charge on the land in favor of Brooks and Martin.
Accepting as correct the account stated in the court below (and no exceptions were taken to the items thereof), it appears that Martin and Brooks, as against Kelly, are entitled to a prior charge on the property for the principal and interest of the debt originally due by Butler to Martin, to wit, the sum of two thousand three hundred and thirty-one dollars and thirty-five cents; Kelly, as second mortgagee, is then entitled to full payment of his mortgage debt, to wit, the sum of one thousand seven hundred and eighteen dollars, and the remainder of the proceeds of the sales of the lands should then be returned to Brooks and Martin, the owners.
The objections we find to the decree of the Chancellor are that it concludes Kelly by the sales made to Shirley and Brooks, to which sales he did not and has not assented; and also that it subjects Brooks’ lands to sale for payment of the sum awarded to Kelly, and turns Brooks over to a new litigation with Martin for relief as to matters which can be settled in the present suit.
On a former appeal between Martin and Brooks we sustained a demurrer interposed by Martin to a cross-bill exhibited against him by Brooks, by which independent relief was sought on this state of facts. When Brooks advanced for Butler the sum which was necessary to pay off Martin, Martin executed to him a warranty deed for the lands (except the lands which had been sold to Shirley), and because of this warranty, and for a prospective breach of it by the decree which he apprehended might be made in this suit, Brooks, by his cross-bill, sought to procure a decree over against his co-defendant, Martin, in this suit. We then held, and properly, that a mere prospective danger of injury did not amount to a breach of warranty, and that in no event could that be made the subject of a cross-bill in this suit. But it does not follow because
It is necessary that both tracts of land shall be sold, for Kelly is entitled to nothing unless both tracts produce a sum in excess of the prior charge of two thousand three hundred and thirty-one dollars and thirty-five cents. And out of any surplus that may exist after the payment of that sum he is entitled to full payment of his debt. As the record now presents the case in condition for a final decree, and in view of the fact that this is the sixth appeal which has been taken in it, we will enter a final decree here.
The decree of the court below is affirmed on the appeal of D. L. Sweatman, and is reversed on the appeal and cross-appeals of Brooks and Kelly. The commissioner appointed by the court below is appointed commissioner to execute this decree. He will sell, according to law, all the lands described in the bill and claimed to be included in the Kelly mortgage, making separate sale of that owned by Brooks and that owned by Martin. Out of ■the proceeds of sale he will first pay the costs of executing this decree. If the aggregate amount then remaining in his hands shall not exceed the sum of two thousand three hundred and thirty-one dollars and thirty-five cents and interest thereon at six per cent, from October 15, 1885, he will return to each owner the amount realized from the sale of his land less one-half of the costs of executing this decree; if the aggregate amount shall exceed the said sum of two thousand three hundred and thirty-one dollars and thirty-five cents, and interest, he shall pay to the defendant Brooks, from the proceeds of the sale of his land the sum of one
If the sum, after paying Brooks and Martin as directed, exceeds the sum of one thousand seven hundred and eighteen dollars and interest, he shall, in paying the debt due to Kelly, first exhaust the fund realized from the sale of the Brooks land, and this being done, any balance shall be paid out of the other. After so paying the debt to Kelly he shall return to Martin any sum which shall remain arising from the sale of his land, and to Brooks any sum remaining from the sale of his land. One-half of the costs of this appeal and one-half of the costs of lower court (save only the costs of executing this decree) are directed to be paid by the complainant, Kelly, and one-fourth of the same costs by each of the defendants, Brooks and Martin. The costs decreed to be paid by each party respectively shall, if not otherwise satisfied, be paid out of any funds in the hands of the commissioner to which such party may be entitled under this decree. The commissioner, having executed this decree, shall make report of his proceedings to the chancery court from which this appeal is taken for its approval.
Reversed and decree here.