7 Utah 426 | Utah | 1891
It is alleged in the complaint in this cause that on the 21st day of June, 1888, the appellant, Charles H. Miller, made and delivered to the plaintiff his promissory note for the sum of $200 and interest, which note he secured by mortgage on real estate, and that the same was due and unpaid on the 26th day of June, 1890, at which time this action was brought to foreclose the mortgage; that on December 31, 1889, the defendant, John M. Drake, purchased the mortgaged premises from Miller, paying him the purchase price in full, and receiving from Miller and wife a full covenant warranty deed therefor; that Drake died before the commencement of this action, and M. M. Kellogg, the defendant, was appointed administrator of his estate. Plaintiff also asks in his complaint a personal judgment against defendant Miller, who is claimed to be personally liable for the debt in question, and that a general execution issue against him to satisfy said judgment and costs; and that on the return of such execution if it shall appear that such personal judgment cannot be satisfied, then said mortgage be foreclosed, and said mortgaged premises be sold, and the proceeds be applied to the satisfaction of the personal judgment, and payment of any deficiency remaining unpaid on such personal judgment.
It is contended by counsel for the appellant that, under the provisions of section 3460 of the Compiled Laws of 1888, there is but one action ■ for the recovery of any debt, or the enforcement of any right secured by mortgage or lien upon real or personal property, which action must be in accordance with the provisions of that chapter: and that, if any personal judgment is rendered it must be accompanied with an order of sale of the mortgaged premises; and that a judgment so rendered is, and must be, held in abeyance by force of the statute until the mortgaged property is sold, and the proceeds applied on the judgment. We think the first part of
The mode of procedure in an action in the Territorial courts is governed by the law of the Territory. Horn-buckle.v. Toombs, 18 Wall. 648. But the jurisdiction of the Supreme and district courts, under the section last referred to, cannot be abridged or legislated away by the Territory. “The jurisdiction thus conferred upon the district and Supreme courts of the Territory is such jurisdiction, at common law and in equity, as was exercised by the common-law courts of England.” People v. Clayton, 4 Utah, 421, 11 Pac. Rep. 206; Enright v. Grant, 5 Utah, 340, 15 Pac. Rep. 268; Bank v. County of Yankton, 101 U. S. 129; Stevenson v. Moody, (Idaho,) 12 Pac. Rep. 902; Dunphy v. Kleinsmith, 11 Wall. 610. And the jurisdiction of the district courts extends to all civil actions for relief formerly given in courts of equity (1 Comp. Laws, 1888, p. 103); and this common-law and chancery jurisdiction, as conferred by act of congress passed April 7, 1874 (1 Comp. Laws Utah, p. 99), may be exercised jointly in the same proceeding or action. The uncertainty that once prevailed as to the general common-law and chancery jur sdiction of courts in the same proceeding is made certain by this act of congress; and in ordering judgment against the defendant Miller, who was personally liable for. the debt (and in justice between
In this case it appears that the appellant, Miller, gave this note and mortgage to the plaintiff, and afterwards sold the land covered by the ■ mortgage to John M. Drake by a full covenant warranty deed, receiving the full value of such land without making any provision for the payment of the note and mortgage he had given thereon, and without any agreement on the part of Drake to assume and pay the note and mortgage, and, so far as it appears, without Drake’s knowledge of the existence of the. mortgage. Miller, then, was simply using Drake’s land as security for his individual debt without Drake’s assent, and in violation of the express covenant in the deed. Under the general chancery power possessed by the court, it could do no less than adjudicate and pass upon the rights of all the parties before it, so as to mete out substantial justice to all in the same proceeding, and thus prevent a circuity of action on the part of the Drake estate. If the contention of the appellant should be carried out, the plaintiff must proceed with his foreclosure, and sell the land first, and then resort to his execution against Miller for the residue of his claim upon the judgment, if any; and this course would make it necessary for the Drake estate (though an innocent _ and possibly a defrauded party) to resort to its separate action against Miller on his covenant of warranty, — a proceeding entirely unnecessary under the practice and statute of this Territory.
In this Territory parties are at liberty to adopt in the foreclosure of mortgages the course pursued under