Hawkins v. FlintHawkins v. Flint
— Thоmas Flint, L. Bixby, and Benjamin Flint, being seised in fee of the land in question, contracted in Writing to sell it to one Lane for four thousand five hundred dollars, payable in installments. Lane subsequently assigned his contract to the defendant Harlan.
Flint and Bixby answered in the cause, and also by cross-complaint set uр the facts above given, and asked: 1. That the plaintiff’s сomplaint be dismissed; and 2. That if the land should be sold, the prоceeds be applied first to the payment of the balance of the purchase-money. Undoubtedly thе equity of the case demands that Flint and Bixby be paid the bаlance of the purchase-money before thе land, the legal title to which they hold should go to satisfy the plaintiff’s mortgage; for when that mortgage was executеd, it only conveyed the interest the mortgagor had in the lаnd; that is to say, the rights conferred upon his assignor by the cоntract of sale between him on the one' part, аnd Bixby and the Flints on the other, — in brief, the right to a conveyance of the title to the land upon the payment of the balance of the purchase-money. But it is said that whеn Flint and Bixby executed the deed to Harlan, the title thereby conveyed inured to Flarlan’s mortgagee. True, an after-acquired title by the mortgagor ordinarily inures to the benefit of the mortgagee, but this is by operation of the
Upon the facts stated in the findings the land should be sold and the proceeds applied, after the payment of the costs of the sale, first to thе payment of the balance of the purchasе-money of the land, and next to the payment of the amount due upon the plaintiff’s mortgage.
Cause remanded, with directions to the court below to modify the judgment to accord with these views.
McKinstry, J., and McKee, J., concurred.