Clark v. Wilson

56 Miss. 753

• Court: Mississippi Supreme Court
• Decided: April 15, 1879
• Status: Published

Opinion

Chalmers, J.,

delivered the opinion of the court.

The legal question presented is, whether the purchaser of real estate at an invalid sale under a mortgage or trust-deed, whose money has been paid, and applied to the satisfaction of the mortgage-debt, is entitled to be subrogated to the rights of the mortgagee, so as to fasten a lien on the land for the recovery of his money.

We answer the question in the affirmative, both upon principle and authority. He is to be deemed and treated as the equitable assignee of the mortgage. Muir v. Berkshire, 52 Ind. 149; Johnson v. Robertson, 34 Md. 165; Stackpole v. Robbins, 47 Barb. 212; Brobst v. Brock, 10 Wall. 519; Jones on Mort., sect. 874. It is upon this principle that our own case of Porter v. Shoot, 44 Miss. 533, rests.

We are asked by counsel to express our opinion upon the question, whether it was admissible for complaiuant to bring this original bill, or whether he should not have filed a cross-bill in the prior and still pending proceeding between the parties, which is reported in 53 Miss. 120.

We do not understand that our statute permitting a defendant to make his answer a cross-bill compels him to do so ; and certainly it does not where, as in this case, he desires to introduce new matter which it is not competent to litigate in the pending proceeding.

Decree affirmed, and defendants required to answer within sixty days.

George, C. J., having been consulted as counsel in the case, takes no part in this decision.