Byrd v. Clarke

Campbell, J., delivered the opinion of'the court. - Appellants, on the 7th of November, 1873, obtained a judgment in the circuit court of Jackson county, against Borden & Elder. Prior to this Borden & Elder had executed’ a mortgage on -a large amount of real estate, including a steam saw [625] aud grist mill, engines, boilers, and other fixtures to appellee, with power in him to sell the mortgaged property upon default in payment of the notes it was executed to secure. One of the mortgagors died after judgment rendered as aforesaid. The condition of the mortgage having been broken, appellee advertised the mortgaged property for sale, and sold it in accordance with the terms of the mortgage, and himself became the highest bidder and purchaser, but no conveyance of the property thus sold'was made. This was on the 16th of January, 1875. On the 20th of January, 1875, an execution on the judgment mentioned was levied on the three engines and boilers aud machinery in the mill of Borden & Elder, and also on a tract of land, which engines, boilers, machinery, and land were part of the mortgaged property aforesaid which had been sold and bid off by appellee. Thereupon appellee exhibited his bill to enjoin the sale of the property levied on under the said execution, on the ground that such sale would form a cloud on his title. Appellants appeared and demurred to the bill, assigning thirteen special eaiises of demurrer, and it was overruled, and an appeal taken. Although we are not able to see that any one of the thirteen special causes of demurrer has any merit, we are of opinion that the bill was demurrable, and that the demurrer should have been sustained, not upon any of the special causes, but on the obvious and substantial ground that the equity of redemption of Borden & Elder in the mortgaged property is vendible under execution against them at any time before a valid sale under the mortgage, and that no valid sale of the mortgaged property has occurred, because appellee could not purchase from himself. The decree overruling the demurrer is reversed, and the demurrer sustained and the bill dismissed, leaving appellee to again attempt to execute the power of sale contained in the mortgage, or to exhibit his bill for foreclosure and sale.