Oswald v. Hayes

Beck, J. i mortgage: solfaipropertyI. It will be observed that the sale by Thurston to Paine was made subject to the mortgage, and with full knowledge on the part of the purchaser of its existence, and upon an agreement by him to pay a part thereof. Hayes had knowledge of the sale and assented thereto upon the express terms that the sale was made subject to the mortgage, and that he should receive a part of his pay from Paine. As between Paine and Hayes, it cannot be doubted, the mortgage continued to bind the property. The purchaser from Paine acquired just such right and title as Paine held. This certainly is so unless he is, in some way, prejudicially affected by the assent of Hayes to the sale, or unless the act of Hayes will estop him to set up his lien on the property. II. Oswald, had the sale to Paine been without the assent and knowledge of Hayes, it will be admitted, could not have [106] held the property free from the mortgage. Now the agreement and assent of Hayes, under which the sale was made to Paine, in no degree imposes an additional burden upon Oswald — -he is in the same position lie would have occupied had the sale to Paine been without Hayes’ assent. It may be remarked, in this connection, that Oswald had the same protection and benefits from the registry laws as though the sale had been without Hayes’ assent. III. There is no ground upon which an argument can. be based, supporting the theory that Hayes-is estopped to set up his mortgage against plaintiff. Oswald’s purchase was without knowledge on his part of Hayes’ agreement; there was no fraud on Hayes’ part, and in no way was Oswald’s purchase influenced by Hayes’ act. In view of these facts, Hayes is not estopped to set up his lien upon the property against Oswald. IY. Plaintiff’s counsel insist that, as Hayes held the title of the property and right of possession, and united with the mortgagor in the sale, the absolute title passed to the purchaser free from- Hayes’ lien. But the difficulty with this position is, that Hayes consented to the sale of the property with the express understanding that it should be bound by his mortgage. The act of Hayes, whatever it may now be termed, was based upon this condition. It was not, therefore, such a transaction as waived or defeated the mortgage. Y. It is insisted tint Oswald is prejudiced because, on account of the assent of Hayes to the sale, the mortgagor cannot be punished criminally under Rev., § 4236. But this section by no means can be so construed that under it an assent by the mortgagee to the sale of mortgaged property will, of itself, defeat the mortgage. Unless it be so construed, the mortgage holds the property after a sale upon the assent of the mortgagee. If the purchaser from the mortgagor did not have the protection which the statute affords through terror of punishment for the sale, on account of the assent of the mortgagee, all that can be said is that the law does not so provide, and this, like many other things that might protect him, is not given him by the law. [107] The questions involved in this case are all within very narrow limits. We have been referred by counsel of neither party to cases which we esteem in point upon the particular facts of the case. It is our opinion that the District Court erred in rendering judgment for plaintiff. Reversed.