Bush v. Person

THIS case was brought up from the high court of errors and appeals of the State of Mississippi, by a writ of error issued under the 25th section of the judiciary act.

The case is stated in the opinion of the court.

It was argued by Mr. Bayard, for the plaintiff in error, and Mr. Crittenden, for the defendant.

Mr. Bayard explained the doctrine of estoppel at common law, and referred to Williams v. Saunders, 80, note. But where there is no covenant of warranty there is no estoppel, 11 How. 298; and in this case there was none. The law of the State implies such a covenant from a deed of bargain and sale, but not as between mortgagor and mortgagee.

Mr. Crittenden contended that the second section of the bankrupt act excepted mortgages and other securities for debt. It says that mortgages must remain unimpaired, but if Bush is allowed to hold, the mortgage certainly is impaired.

Mr. Justice CURTIS delivered the opinion of the court.