132 F.2d 21 | D.C. Cir. | 1942
This appeal arises out of interpleader proceedings. Appellee Drury, as trustee, foreclosed a first deed of trust upon certain real property. The foreclosure produced a surplus over the amount of the secured debt. Thereupon Drury interpleaded persons who, he conceived, might claim an interest in this surplus. Appellant Thompson and the appellees other than Drury are among the persons interpleaded.
In 1922, one Levy owned the lot in question and executed this first deed of trust. Levy executed at the same time a second deed of trust to Evans. Levy then conveyed the lot to Ford subject to these two trusts. Between 1924 and 1926 Ford executed several additional deeds of trust on the lot. In two of these additional trusts appellant Thompson was the trustee and the former owner, Levy, was the secured creditor. Ford warranted the property “specially,” i. e., against persons claiming through or under her,
The District Court ruled that appellee Drury should pay the surplus proceeds of
The question is whether reacquisition of title by a former owner (Ford), after a senior lien (the second trust) has been foreclosed, revives junior liens (the deeds of trust to appellant Thompson) to which the former owner had subjected the property before the senior lien was foreclosed.
Normally, of course, foreclosure of a senior lien subordinates all junior liens to the rights of subsequent purchasers. We agree with the District Court that in the absence of fraud or collusion, of which there is no sufficient averment here, this rule applies despite the fact that a subsequent, purchaser happens to be that former owner of the property who, as mortgagor, had created the junior liens. Appellant urges that Ford, when she reacquired title, was estopped to assert it against him; on the familiar principle that one who does not own what he purports to convey may not, in violation of his covenants of warranty, assert an after-acquired title against his grantee.
Affirmed.
D.C.Code (1940) § 45—305.
See Note, 111 A.L.R. 1285.
Van Rensselaer v. Kearney, 52 U.S. 297, 11 How. 297, 322 ff., 13 L.Ed. 703; Note. 58 A.L.R. 345.
Bowen v. A. R. Boyd Enterprises, 326 Pa. 385, 191 A. 137, 140.
Cf. Zandri v. Tendler, 123 Conn. 117, 193 A. 598. 601. 111 A.L.R. 1280. 1283.