Smith v. Childress

HoldeN, J., delivered the opinion of the court. The land involved in this case was purchased hv appellants at a foreclosure sale by the trustee in a deed of trust. The trust deed under which the sale was made was- a renewal or extension of a prior deed of trust. The renewal deed of trust under which the sale was made recited the following: “The money here secured as evidenced by the above promissory notes includes the balance due on a certain deed of trust which was executed - by me on the 26th day of February, 1907, and which is hereby renewed and extended to H. B. G-reaves, trustee, for the use of John Livelar, and duly entered of record in said county in Book A. Gr., page 185, the money being then borrowed to pay on the purchase money of the above-described lands.” This second or new mortgage was executed as a renewal of the old deed of trust. Before the execution of and before said sale under the renewal mortgage, and after the date of the execution of the first mortgage, the appellees acquired title by purchase from the mortgagor to the land involved in this suit. The appellants contend that the prior lien of the first mortgage, which was renewed by the second mortgage, was continued and was superior to the title acquired by the appellees, who were intervening incumbrancers; and that the sale by the trustee under the second mortgage conveyed a valid title to appellants as against the intervening incumbrancers, appellees. The appellees contend that, while the lien in the first mortgage was'prior to their claim, yet the title acquired by appellants at the [26] trustee’s sale under the second mortgage cannot prevail against the title of appellees, for the reason that the foreclosure sale should have been had under the first mortgage, and, as the sale was made under the second mortgage, the prior lien was lost as against appellees’ intervening title. Appellants contend that section 2796 is involved and that under its terms this case should be reversed. We think the intervening title conveyed to appellee by deed from the mortgagor was subject to the prior mortgage lien of record, which was renewed and extended by the execution of the second mortgage, under foreclosure of which the appellants acquired the land; and upon this title appellants may rely as against that of appellees. The second mortgage, under which the foreclosure was had, was not taken as payment or cancellation of the first mortgage lien, but was a renewal or extension of the old, all of which fully and regularly appeared upon its face and upon the registration record. Therefore the lien of the original mortgage was simply continued without interruption, by and under the -new mortgage, as against the appellees, who were intervening purchasers, or incumbrancers, with notice. The new mortgage, which was a renewal or substitute of the old, extended and continued all of the rights and remedies secured by the old mortgage. Section 2796, Code of 1906, section 2297, Hemingway’s Code, has reference only to the requirement of registration of renewals and extensions of mortgages to prevent bar by limitation, and has no direct bearing on this case —except that it is shown to have been complied with as to notice of renewal, and may indicate, by inference, the correctness of our holding here — as the intervening title of appellee was acquired with notice of the first mortgage before the execution of and sale under the renewal mortgage. The fact alone that the proceeds of the sale under the mortgage amounted to more than the debt due by the [27] mortgagor can- have no effect upon the title of the purchaser at the foreclosure sale. Appellants’ title to the land here in question obtained through the sale under the renewal mortgage is valid and must prevail as against the intervening claim of ap-pellees. B. F. Howell et al. v. A. H. Bush, 54 Miss. 437-446; Britton & Mayson et al. v. Jane H. Criswell et al., 63 Miss. 394; 27 Cyc. 1413; 19 R. C. L. 235. The judgment of the lower court is reversed, and judgment entered here for appellants. Eeversed, and judgment entered. Reversed.