Hiller v. Levy ( 1888 )

Campbell, J.,

delivered the opinion of the court.

The judgment should have been for the appellant. The principle that delivery of the mortgaged property to the creditor operates as a discharge of the mortgage debt unless otherwise agreed between the parties as held in Ogden v. Harrison, 56 Miss. 743, is not available to the appellee, for the deed of trust did not embrace anything besides the mule. The rule that payments not appropriated by the payor or payee, will be appropriated by law for the debtor’s benefit cannot help him, because they were appropriated by the parties who had the right to dispose of them regardless of the interest or wishes of appellee, who did not sustain any relation to the thing with which the payment was made to give him the right to insist on any appropriation of payments, and for the further reason that if the parties had not appropriated the payments, it is not apparent what benefit it would be to the debtor, Middleton, to pay off the mortgage on a mule he had sold to the appellee. His interest was to .pay the debts he owed, and not to clear the mule of incumbrance for the benefit of the appellee, and he seems to have acted on this view.

The claim of the appellee, the purchaser of a mortgaged mule, that he had any right to be heard as to the dealings between the mortgagor and nfortgagee as to other things than the mule is without foundation. If the mortgage on the mule was paid he was entitled to the mule, but whether it was paid or not was determinable by the dealings of the parties without any right in him to object to anything they did with that to which he had no sort of claim.

Reversed and remanded.