Millsaps v. Bond

Cooper, C. J., delivered the opinion of the court. Whether in the absence of all evidence competent as between the junior mortgagee and the purchaser of a part of the mortgaged property to establish the respective dates of their conveyances, the court ought to have made any decree directing the order in which the lands so mortgaged or conveyed should be sold, it is unnecessary to decide, since the decree must be reversed on another ground. By his bill, which was taken for confessed against the defendant, Connerly, the complainant, charged that a part of the mortgaged premises had been, subsequent to the execution and enrollment of his own mortgage, mortgaged to the defendant, Millsaps, and a part sold to Lee, leaving, so far as the record discloses, a part of the mortgaged property in the mortgagor unincumbered by any other conveyance or lien. That this land should be first applied to the payment of the mortgage sought to be foreclosed is required by the plainest principles of equity, and is recognized as the right of the junior mortgagee by an unbroken line of authorities. The case is argued here as though the bill had been dismissed on the application of the complainant and without objection by the junior mortgagee as to the lots of land of which Connerly remained owner, subject only to the complainant’s mortgage, but this assumption is not supported by the record. The record shows that the complainant made a motion for leave to dismiss his bill as to such lots, but this motion was not sustained by the Chancellor, so far as the record shows, and it ought not to have been. By his answer the defendant, Millsaps, insisted that the lands not embraced in his [457] mortgage should be first sold, and it was upon this answer, not changed or modified, that 'the final hearing was had. It cannot be said that one who throughout the trial insists upon a right by his pleading does not object to a decree by which that right is refused. The record suggests that the complainant and the other defendants have acted in concert to the injury of the appellant, but in so doing a manifestly erroneous decree has been obtained, which must be reversed. We will not enter a final decree here, but reverse the one entered in the court below and remand the cause for further proceedings there.