Smith v. Metzler

Per Curiam. —In this case Fred Smith and wife in December, 1924, purchased a parcel of land from Metzler and wife and assumed as a part of the purchase price the payment of a $12,000.00 mortgage held by one Bryant and also made and executed to Metzler a second mortgage to secure the balance of the purchase price. The second mortgage contained, amongst other things, the following clause: “It is expressly agreed by and between the parties hereto that this mortgage is a Second Mortgage, and is given subject to a First Mortgage of $12,000.00 in favor of George W. Bryant. It is further agreed; If, in the event a renewal is secured of the first mortgage of $12,000.00 that the same shall remain a First Mortgage against the premises above described and that the indebtedness herein secured shall be Second, and subject to the First Mortgage of $12,000.00, as though the present mortgage had not been renewed. Intending by the foregoing that a new mortgage for $12,000.00 may be taken as such renewal.” *316 "When the Bryant mortgage had been paid, probably in full but certainly down to $2,000.00, the Smiths, in April, 1928, and about a month after Metzler had begun foreclosure proceedings, made a deal with Bryant and one Minnie I. Smith whereby they made a new mortgage to Bryant for $12,000.00. Bryant endorsed the notes without recourse and delivered them to Minnie I. Smith, together with an assignment of the new mortgage, and Minnie I. Smith delivered to Fred Smith and wife cash and securities in the sum of $12,000.00, or probably in the sum of $12,000.00 less $2,000.00. There is evidence to sustain either proposition in the record and the Chancellor evidently found the former proposition to have been established. The Metzlers filed suit to foreclose their second mortgage and, by amendment, included as defendants all necessary parties and the parties now before this Court. Fred Smith and wife filed answer, as did also Minnie I. Smith. (It appears that Minnie I. Smith is not related to Fred Smith and wife). Replication was filed to the answers. The issues presented were whether or not the last mortgage made by the Smiths to Bryant and immediately transferred by him to Minnie I. Smith was a renewal of the original Bryant mortgage as contemplated by the provisions above quoted contained in the mortgage from Fred Smith and wife to the Metzlers and was, therefore, prior in dignity to the Metzler mortgage. The Chancellor held that it was not. The evidence shows conclusively that the mortgage executed by Fred Smith and wife to Bryant was for the purpose of procuring from Minnie I. Smith money and securities in the sum of $12,000.00, though it may be that $2,000.00 of it was to go, and did go, to Bryant to pay off the first mortgage. However, at any rate, the new mortgage was made for a new and entirely different consideration and there flowed to the *317 Smiths not only the satisfaction of the original mortgage bnt a large snm of money and valuable securities in addition thereto. It could in no sense be held to be a renewal of the original obligation. It may be under the facts of the case that Minnie I. Smith could have established her right to subrogation to the lien of the original Bryant mortgage to the extent of $2,000.00 but certainly she could have done no more than that and this she did not attempt to do. A careful perusal of the record discloses no reversible error. Therefore, the decree should be affirmed and it is so ordered. Affirmed. Buford, C.J., and Ellis and Brown, J.J., concur. Whitfield, P.J., and Terrell and Davis, J.J., concur in the opinion and judgment.