Horton v. Ingersoll

By the Court: The proceeding which was had for the foreclosure of the second mortgage, whether regular or irregular, had the effect to transfer at least the mortgage interest to the purchaser;' and when he deeded to Saunders, the latter occupied the position of subsequent mortgagee as to Horton, who, in foreclosing his mortgage, was entitled to make him a defendant. The fact that Saunders had also become the holder of a tax title can make no difference. Horton has the right in this suit to foreclose all interests derived from the mortgagor subsequent to his own mortgage; and a claim which a party makes adverse to this mortgage., cannot be used to shield and protect one which is not adverse, but subject to it. But inasmuch as the taxes for which the land was sold were burdens which had to be removed, in order to protect the mortgage interest, upon which they were as much charged as upon the equity of redemption, Saunders could not, by purchasing the tax title, obtain the [414] right to use it adversely, and it simply inures to the protection, not to the destruction, of the regular title. There is no error in the decree, and it must be affirmed.