Shriver v. Clauson

Opinion by Page, J., ⁷⁵³ Maggie E. Zapf, by her last will, devised to her husband, George E. Zapf, all of her real estate, consisting of a house and lot in the city of Cumberland, provided that when it should be sold, her daughter, Maggie, should “ have and receive from the proceeds of sale the sum of two hundred dollars, and the said sum of two hundred dollars is hereby made a charge on the real estate.” Later on and after the death of the testator, the devisee, having remarried, executed, with his wife, Elizabeth, a mortgage to the appellee Clauson to secure an indebtedness of seven hundred dollars and interest. The mortgage contains a power of sale to Clauson, his personal representatives or assigns ; or to D. J. Blackiston, to be executed upon default being made by the mortgagor in the payment of any part of the mortgage debt or the interest accrued thereon. This having occurred, Blackiston, the attorney, in the usual manner made sale of the premises. Aftér the sale was finally ratified by the Court, the proceeds thereof were referred to the auditor testate an account.

In his statement, after the allowances for costs and the expenses of the sale, the auditor awards to the appellee the principal and interest of the mortgaged debt; and the residue of the proceeds of sale, being the small sum of $56.26, is distributed to Robert Shriver, who ⁷⁵⁴ holds a junior mortgage on the property. To the ratification of this account,'Shriver, who was also the purchaser of the property, excepts, because the auditor ignored and entirely omitted the lien of the daughter, Maggie, for the sum of two hundred dollars ; which- it is contended should have been paid and distributed out of the fund, the will of the testator having required that she should receive that sum out of the proceeds of sale. It should also be stated, that Maggie, the daughter, did not join in the mortgage, under which the property was sold, nor is she, in any manner, a party to these proceedings. The Court said : “ It is difficult under these circumstances, to perceive how her interest in the real estate has been affected by the sale.

The effect of the mortgage was to convey to the mortgagee only the interest that was then in George Zapf and his then wife. At law, it passed to the mortgagee the title that was then in Zapf, though in equity the