Leonard v. Groome

Stewart, J., delivered the opinion of the Court. In this case exceptions on the part of the purchaser were filed to the sale made by the trustees appointed hy the Court to foreclose an elder mortgage, alleging amongst other things, that there were outstanding junior liens, the holders of which had not been made parties to these proceedings, and his title was thus encumbered. The Circuit Court properly overruled the exception and confirmed the sale. - The right of the purchaser under the sale made in this case is paramount to any junior mortgages or liens, whether the holders of such liens are made parties or not. They are presumed to have notice of the existence of the prior mortgage, and whilst proceedings are pending for its foreclosure, may come into the Court of equity, be made parties, redeem the elder mortgage or assert their claims to any surplus, after satisfaction of the elder mortgage and incidental expenses.

The sam'e rule governs at law. The purchaser at a sale under process of execution upon a senior judgment holds the title above junior judgments and cannot be disturbed thereby. The holders of the junior judgments may resort in that forum to any surplus after satisfaction of the execution. Where sales are made under power given in the mortgage in