Hitchler v. Citizens' Bank

Cooper, C. J., delivered the opinion of the court. The mortgage executed to secure the debt of Black is not void merely because it includes the sawlogs which from time to time might be brought on the mortgaged premises. There is no authority reserved by the deed to the mortgagor to sell these logs or the lumber into which they might be converted. It would not be a violent presumption to indulge that such was the understanding of the parties, but it does not unmistakably appear that it was, [409] and it is only where the reservation of such right is expressly reserved that the conveyance is to be declared void on its face. Britton & Mayson v. Criswell, ante, 394. It does not appear by the evidence that any of the mortgaged property was in fact sold by the mortagor, nor that there was any agreement in reference to it other than that appearing in the deed. But it is manifest that the appellants could by no possibility have been injured or delayed in the collection of their debt by reason of this mortgage, for the mortgage by its terms was to become forfeited in thirty days from the date of its execution, while the debt due from Diggs to complainants arose from a loan of money made years before, and to be paid years after that time; so, whether the sawlogs were or were not included in the mortgage to secure Black, or whether they were or were not to be held by the mortgagor was immaterial to complainants, since in no event would they have been in the possession of the common debtor when their debt matured. Complainants had no sort of interest in the arrangement made between Black, the mortgagee, and Borden and Elder, the purchasers under the sale made by the trustee Mclnnis, by which Borden and Elder were permitted to use in lieu of cash five thousand dollars of the money secured by the mortgage. Black himself might have appeared as a bidder at that sale and used the whole of his debt as cash in settling with the trustee, and what he might have done he could by contract permit Borden and Elder to do. We see nothing in the record to invalidate that sale, and by it, if valid, the lien of complainants’ junior mortgage was destroyed. Borden and Elder having thus acquired a title superior to the mortgage of complainants, they are no longer interested or competent to controvert the title of the appellee, who claims to be the owner of the property through the title of Borden and Elder. If appellees are the assignees of that title by valid conveyances, they are entitled to protection because they are owners. But if they are not the holders of that title, they are protected in this suit because the complainants are strangers and cannot call on them to exhibit or defend their chain of title. The decree is affirmed.