Brooks v. Robinson

54 Miss. 272 | Miss. | 1876

Campbell, J.,

delivered the opinion of the court.

The court below did not err in refusing to remand the cause to rules. It did not err in decreeing for the complainant. It did not err in directing! a sale of the entire tract of land subject to the decree in tracts not to exceed one hundred and sixty acres, and in not limiting the commissioner to a sale of only such parts of it as he found necessary to satisfy the decree. It was not necessary to express in the decree that only so much of the land as was found necessary to pay it should be sold by the commissioner. That is implied in every decree of the sort. The court has control of the sale until confirmed ; and, if the commissioner should disregard his duty to the court in making the sale, by selling more than he should, this would be ground for refusal to confirm the sale. At the last term, in Dorrah v. Robertson, MS. Op., we held this, and it may be considered the settled doctrine of this court. In the case of Morse v. Clayton, 13 S. & M. 373, where four distinct lots were decreed to be sold to pay a mortgage, the decree was directed to be corrected in this court, by directing a sale of only so many as were necessary. We considered this case in deciding Dorrah v. Robertson, and declined to follow its suggestion in this respect, and still approve our own conclusion.

There is no error in the decree in this case because of the failure to enter a separate order of reference to compute the sum due, or a separate order confirming the report of the commissioner. Under § 1027 of the Code it is competent, in suits for the foreclosure or satisfaction of mortgages or deeds of trust, if the court shall think the complainant entitled to a decree, to refer to a master to compute the amount due; and he shall proceed, without delay or notice to the parties, and no motion to confirm his report is necessary. Until the case is heard by the Chancellor, he cannot conclude that the complainant is entitled to a decree ; but, hearing it, and thinking the complainant is entitled to a decree, he pauses, refers to a master for computation, and, receiving his report, a final decree is prepared, which is the written memorial of what was done. The same course is applicable to a suit to enforce a vendor’s lien, or an express lien reserved in the' deed of conveyance, as in this case. Kilcrease v. Lum, 36 Miss. 569.

The only remaining question is as to the amount of the decree, it being claimed that the commissioner, in stating the account between the parties, and computing the amount due, proceeded on wrong principles in calculating interest in case of partial payments, wbicb had been made from time to time by Brooks. We are urged to refuse to inquire into this, because no exception was made to the commissioner’s report on this ground in the Chancery Court, and authorities are cited in support of the objection. We do not think this case falls within the rule which precludes an objection here, not made in the court below. It is always admissible to correct an error in amount manifested by the record. In Fowler v. Payne, 52 Miss. 210, at last term, we announced that it is not necessary to file exceptions to a report which is erroneous in point of law, or which violates the directions upon which it was ordered to be settled. It was said, “ such report may be attacked on the motion for confirmation, or by appeal from decree of confirmation.” It must be so in the nature of things. The appeal brings up the whole case, and presents the question whether the decree is right in whole or part upon the entire record. It would be monstrous to deny an appellant the right to have the decree corrected, if, upon the facts and legal principles, the decree against him is for too much, even though he made no objection in the court below. As to the suggestion that the recognition of such right will encourage resort to this court, to correct trivial errors of calculation to which attention was not called below, where the error would have been promptly corrected, we remark, that suitors should be careful not to take judgments or decrees for more than they are shown by the record to be entitled to, and they will escape all danger from the course apprehended as likely to be pursued, if we allow complaint of the amount of the decree made here for the first time.

The master computed interest on the amount of the note according to its tenor to the time of the first payment, and added the interest to the principal, and from the sum deducted the payment. On the balance thus obtained he calculated interest to the time of the next payment, and added the interest, and from the sum subtracted the next payment, and after this manner until all the payments were applied: and by this course he obtained as the result $3,123.15, which,'it is claimed, is a sum too great by several hundred dollars; because it is said that, where the partial payments, severally, do not exceed or equal the interest accrued at the time of the partial payment, the effect of making the sum obtained by adding interest to the principal and deducting the payment is to compound interest by making the part of the interest not paid to bear interest, which is claimed to be not in accordance with the statute applicable to the subject. There seem to be three modes of computing interest practised among men, viz.: That observed in this case ; that which obtains among merchants generally, which is to calculate interest separately on the debits and credits from their respective dates; and to calculate interest on the sum due to the time of the first payment, and, if the payment equals or exceeds the accrued interest, to add the interest to the principal, and from the sum deduct the payment; but, if the payment is less than the accrued interest, to take no notice of the payment, but calculate interest on the' principal to the time of a payment which, added to the payments made before, shall equal or exceed the accrued interest, and then add interest to principal, and deduct the payments from the sum, when the balance will be a new principal to bear interest, to be proceeded with as before.

The one rule compounds interest; the others do not. The compounding plan of computation was adopted by the commissioner, and sanctioned by the decree in this case. The question is, What is the statutory rule in this State for the computation of interest where partial payments are made, some or all of which, severally, are less in amount than the interest accrued at the time they are severally made ? In this case, some of the payments were less in amount than the interest accrued at their respective dates. The statute is, “ When partial payments are made, . . . the interest that has accrued up to the time of such payment shall be first credited, and the residue of such partial payment shall be placed to the payment of the principal” (Code of 1871, § 2282) ; and this is copied from the act of 1857, which is in the very words of the statute in Hutchinson’s Code, substituting “ residue ” for “ balance. ” Code of 1857, p. 370, art. 4 ; Hutch. Code, p. 643, art. 7, § 57.

In Houston v. Crutcher, 31 Miss. 51, an instruction by the Circuit Court to the jury, that “ the proper mode of computing interest, when there are credits as partial payments, is to add interest to the time of the first payment, to deduct the payment then made, to add interest on the balance to the time of the second payment, and deduct the same, and so on from payment to payment,” was held to be correct in its statement of the rule for the computation of interest in cases of partial payments, as intended by the statute. Hutch. Code, p. 648, art. 7, § 57. It does not appear from the report of this case whether the partial payments equalled or fell short of the interest accrued when they were made. The learned judge, delivering the opinion of the court, does not advert to any such distinction, nor analyze the statute, nor criticise its phraseology, but rests the opinion upon Bond v. Jones, 8 S. & M. 368, as understood by the court, and upon what was said to be a “ very uniform course of practice in our courts and by general understanding among the people.” If it was the understanding of the court in deciding Houston v. Crutcher, cited above, that the same rule is to be applied in case of partial payments which are less in amount than the interest accrued when they are made, we dissent from it, and as to that overrule it. The case of Bond v. Jones was certainly misunderstood, if it was supposed to announce the doctrine that the statute applies where the partial payments are less than the accrued interest. In that case, the partial payments exceeded the interest. The Chancery Court, in directing the mode of statijig the interest in taking the account, applied the commercial rule of calculating interest on debits and credits separately from their dates; and this mode was held incorrect, as not in conformity to the statute ; and this decision gives no countenance to the idea that the statute applies to partial payments less in amount than the interest.

The language of the statute leaves no room for doubt as to the state of case to which it applies. “And the residue of such partial payment shall be placed to the payment of the principal.” There cannot be a “ residue,” if the payment does not exceed the interest. Therefore, we declare the rule to be that partial payments less than the accrued interest are not to be applied first to the payment of interest until the sum of such payments shall equal or exceed the interest accrued, when the application directed by the statute shall be made.

Chancellor Kent, in Connecticut Jackson, 1 Johns. Ch. 13, 17, declared that “ the rule for casting interest when partial payments have been made, is to apply the payment, in the first place, to the discharge of the interest then due. If the payment exceeds the interest, the surplus goes towards discharging the principal, and the subsequent interest is to be computed on the balance of principal remaining due. If the payment be less than the interest, the surplus of interest must not be taken to augment the principal; but interest continues on the former principal until the period when the payments, taken together, exceed the interest due, and then the surplus is to be applied towards discharging the principal; and interest is to be computed On the balance of principal as aforesaid.” We understand that the object of our statute, when' first adopted, was to adopt the rule announced by Chancellor Kent. It employs fit language to do this, and such is its effect. McFadden v. Fortier, 20 Ill. 509.

Decree reversed, and a decree entered here.