McCormick v. Wilcox

Caton, C. J. As the two first errors assigned were abandoned on the argument, it will be unnecessary further to notice them. The others raise but two questions, which may be disposed of almost as briefly. The first objection is, that the mortgage was on the homestead of the mortgagors, and that there is no release of the homestead right in the body of the mortgage or in the acknowledgment. The bill, which was taken for confessed, shows that the mortgagors resided upon and occupied the mortgaged premises at the time the bill was filed, but there is no intimation that it was their homestead at the time the mortgage was executed. No homestead rights could attach to the premises by their making it a homestead after the mortgage was executed. The next objection is, that as the nature or character of Clark’s interest in the premises is not disclosed, it may be that' he has a title paramount, which is cut off by this decree. The decree merely forecloses his equity of redemption, and consequently affects no title which he has, which is not subordinate to the mortgage, and by his default he admits that he has no defense to any such title which he may have. The decree is affirmed. Decree affirmed.