Jackman v. Beck , 37 Ark. 125 ( 1881 )

Harrison, J.

It is insisted by the appellant that upon •the partition of the land, the mortgage attached to the whole of the portion set off to him in severalty, and that .•set off to Carleton was entirely released. This no doubt, would have been the effect of the partition if the mortgagee had been a party to it, or had ratified it. Jones on Mortgages, sec. 706; Colton v. Smith, 11 Pick., 311; Bradley v. Fulton, 23 Pick., 1.

But there was no proof of a ratification by the mortgagee, and of his assent to a change in his security, and the decree ■as to the foreclosure was, therefore, correct; but the sale •should have been on a credit, as required by the Statute, •and for no part cash. And for this error the decree must be reversed.

The cause will be remanded to the Court below, with instructions, should the mortgagee consent thereto, as it has been suggested here by his counsel he will, to decree a foreclosure as to the whole of the portion of the lands set ■off to Jackman, and not as to any part of that to Carleton ; if not, as to the undivided half of the whole, and a sale of the •same as provided by the Statute.