Mercantile Trust Co. v. South Park Residence Co.
Court of Appeals of Kentucky
Case 42 — PETITION EQUITY — 1. The unsatisfied mortgage barred an eviction of the purchaser in possession, and appellee’s voluntary surrender by purchasing the rights of outside claimants was an unlawful surrender. While it was not necessary for appellee to wait until ousted by judgment and writ of possession, yet he should have waited until action was brought wherein appellant might have been substituted to defend.
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Case 42 — PETITION EQUITY — 1. The unsatisfied mortgage barred an eviction of the purchaser in possession, and appellee’s voluntary surrender by purchasing the rights of outside claimants was an unlawful surrender. While it was not necessary for appellee to wait until ousted by judgment and writ of possession, yet he should have waited until action was brought wherein appellant might have been substituted to defend. (Hamilton v. Outts, 4 Mass., 350; Rawle on Covenants for Title, pp. 264, 265; Sprague v. Baker, ! 7 Mass., 590; Dupuy v. Koeback, 17 Ala., 488.) By a conveyance of mortgage, the…
1Opinion of the Court
JUDGE HAZELRIGG
delivered ti-ie opieioii oe the court.
Mrs. Dorcas White was the owner of a tract of ■.some three hundred-and eighty acres of land near *273Louisville, Kentucky. In 1875 her son, Theodore S. White, borrowed from the Mercantile Trust Company of New York the sum of five thousand dollars, and Dorcas and her husband, by way of mortgage, conveyed the land named to the Trust Company to secure the payment of this debt.- The loan was made ■ on five years’ time, but the interest not being paid, in March, 1878, the company instituted proceedings in the circuit court of the United States for…
2Cases cited4 opinions
- Hunt v. WickliffeSupreme Court of the United States · 1829
- Taliaferro v. GayCourt of Appeals of Kentucky · 1879
- Stewart v. BarrowCourt of Appeals of Kentucky · 1870
- Robertson v. LemonCourt of Appeals of Kentucky · 1867
3Cited by14 opinions
- New Domain Oil & Gas Co. v. McKinneyCourt of Appeals of Kentucky · 1920
- Eli v. TrentCourt of Appeals of Kentucky · 1922
- National Surety Co. v. PriceCourt of Appeals of Kentucky · 1915
- Booth v. CopleyCourt of Appeals of Kentucky (pre-1976) · 1940
- Haas v. GahlingerCourt of Appeals of Kentucky (pre-1976) · 1952
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