Davison v. Waite , 2 Va. 527 ( 1811 )

“ The court is of opinion that the chancellor erred in dissolving the injunction, on the failure of the appellant to pay the sum stated in the decree j

“ 1st. In not directing a sale of the mortgaged premises ; whereby the appellant would have received the residue of the value thereof, beyond that sum, if it would have sold for more ; and,

“ 2dly. Because the appellant had procured the dower right of Eiger’s wife, which had not been relinquished to the appellee, and who ought not to have been placed in a better situation than he stood under his mortgage; and the court, in letting the appellee into possession, or in directing a sale, ought to have guarded the appellant’s right to the dower interest, which has now accrued, provided Mrs. Eiger has survived her husband.

“ But the court also erred, as to the amount which was properly chargeable on the mortgage, as it respects the appellant, who claims as a purchaser under the mortgagor j that is to say, in allowing to the appellee the sum of two hundred and ninety-seven dollars on account of deficiency in the quantity of land.

“ The purchaser from the mortgagor will be bound for the amount intended to be secured by the mortgage, but not for other claims, of the mortgagee, on the mortgagor ; especially, if he has received no notice of such, claims.

“ In this case, neither the mortgage, nor the deed of trust, gives notice of this claim, on account of a deficiency of the quantity of land; but as well the mortgage and deed of trust, as the communications between, the parties, had reference, first, to the inability of Tidball to convey, and, secondly, to the sum to be paid to him to procure the title, if he could convey. But as to a claim on Eiger for a deficiency in the quantity of land, the purchaser had no notice thereof. That sum of two hundred and ninety-seven dollars must therefore be taken from the sum of four hundred and eighteen dollars and forty-nine cents, decreed to be paid; which will leave one hundred and twenty-one dollars and forty-nine cents, to which, with the interest thereon, the mortgaged premises are to be subjected in the hands of the appellant.

éc Decree reversed with costs;' and suit remanded to be proceeded in to a final decree according to the principles of this decree.”