Mason v. Philbrook

Appleton, C. J. This is an action of ejectment on a mortgage given by Mighill Mason to the demandant, dated November 14, 1859, to secure the payment of two notes of hand, each for the sum of three hundred dollars. Mighill Mason having become a bankrupt, the other tenant, Philbrook, claims the estate covered by the mortgage as a pur■chaser at an auction sale of the bankrupt’s real estate. Assuming all the proceedings in the bankruptcy court correct and the ■sale in all respects valid, the assignee of Mighill Mason neither conveyed nor undertook to convey more than “ the right, title and interest of the bankrupt ” in the premises sold. The real question is as to the payment or discharge of the ■mortgage in suit. The tenant’s title is subject to the mortgage ■unless paid or discharged, and it is for them to show its payment ■or discharo-e: and we do not think the evidence shows either. [59] It is claimed that the demandant is estopped to recover because he did not disclose his mortgage claim at the time of the sale of the premises to Philbrook. The mortgage was on record. It is in dispute whether the demandant was at the place of sale until after the estate in controversy was sold Philbrook. If present, he is not so far estopped by reason of his omission to state his title as thereby to forfeit his estate — particularly where no inquiries were made of him, and where an examination of the records would have shown the existence of the mortgage, and when, in fact, the auctioneer was not attempting to sell anything more than the debtor’s interest. Judgment for the demandant. Walton, Barrows, Yirgin and Libbey, JJ., concurred.