In a foreclosure proceeding it appears that on July 5, 1927, Frank H. Elmore executed to J. B. Loeb a mortgage upon described real estate to secure the payment of a promissory note for $2,000.00 payable in three years; that the mortgage was recorded July 5, 1927; that on the same day Frank H. Elmore executed to Charles E. Pelot a mortgage for $500.00 covering the property but subject to the mortgage for $2000.00 above mentioned that on July 6, 1927, Frank H. Elmore conveyed the mortgaged property to W. T. Walker, J. B. Loeb and Thomas T. Elmore, subject to the $2,000.00 mortgage and also subject to the $500.00 mortgage given by Frank H. Elmore to Charles E. Pelot, "both of which said mortgages the grantees in said deed assume and agree to pay"; that on May 21, 1931, J. B. Loeb sold and assigned the note and mortgage for $2,000.00 to Fred B. Loeb, the complainant; that the grantees of the mortgagor defaulted and foreclosure proceedings were brought, there being various defendants including Charles E. Pelot, the holder of the $500.00 mortgage.
A motion was made by the defendant, Charles E. Pelot, to dismiss the bill of complaint, one of the grounds in effect being that the original mortgagee, J. B. Loeb, with two other persons later acquired the title to the mortgaged property and assumed the mortgage made to Charles E. Pelot and that the "complainant acquired the title to the mortgage sought to be foreclosed with knowledge of said contract and obligation." This motion to dismiss was denied and the *Page 17 final decree adjudged the $500.00 mortgage of Charles E. Pelot to be subordinate to the complainant's $2,000.00 mortgage. Charles E. Pelot appealed.
While according to the allegations of the bill of complaint, J. B. Loeb, the complainant's assignor of the $2,000.00 note and mortgage, in taking title with two other persons to the mortgaged property, assumed and agreed to pay the $500.00 mortgage of Charles E. Pelot, it does not appear that the complainant assumed and agreed to pay the Pelot mortgage. The transfer of the note and mortgage to complainant was after the note was past due and in default, but in foreclosure proceedings the rights of the complainant are measured by the assignment of the mortgage as well as by the note, and the assignment contains no assumption of or promise to pay the Pelot mortgage. Complainant took by assignment a mortgage that is superior to the Pelot mortgage, but the assignment contained no assumption of or promise to pay the Pelot mortgage and it does not appear that complainant otherwise promised to pay the Pelot mortgage. Complainant is the assignee of the mortgagee's right in the mortgage, not the assignee of the mortgagor's grantees.
J. B. Loeb took with two others the title to the property on which J. B. Loeb held the $2,000.00 mortgage; but the mortgage was not thereby merged into the title held by the three grantees of the title and there is no showing of circumstances to preclude J. B. Loeb from holding or assigning his mortgage covering the property to which he and two others took title subject to the mortgage. There is nothing to show that complainant has subordinated his assigned mortgage to the Pelot mortgage which latter when executed was made subordinate to the $2,000.00 mortgage assigned to complainant. *Page 18
Affirmed.
ELLIS, TERRELL and DAVIS, J. J., concur.
BROWN and BUFORD, J. J., dissent.