7 Ind. 213 | Ind. | 1855
Porter, the defendant in error, brought his bill in chancery, against Thompson W. and Noah Francis, for the foreclosure of a mortgage. They failed to answer, and he obtained a final decree, upon taking the bill as confessed; to reverse which this writ of error is brought.
The bill states that, in 1841, the plaintiff owned two tracts of land, containing eighty acres each, which he had mortgaged to the state to secure the repayment of a loan of 500 dollars borrowed from the sinking fund; that he sold and conveyed one of said tracts to Thompson W. Francis for 1,000 dollars, 500 dollars of which he paid, and the residue he agreed to pay by satisfying said mortgage, and especially by releasing the tract retained by the plaintiff from said incumbrance; that the last-named tract was valued at 400 dollars. The bill charges that instead of paying off the mortgage, said Francis allowed the lands to be forfeited, and to be sold by the state; that he became the purchaser, and took from the commissioners of the sinking fund a certificate in the name of his brother Noah Francis; that as soon as the plaintiff learned these facts,
Upon taking the bill as confessed, a decree was entered, requiring the defendants, within ninety days, to pay the amount due on the mortgage to the state, and, within the same time, to convey to the plaintiff the tract owned by him, or that they pay into the clerk’s office 400 dollars for the plaintiff’s use, which the Court found to be the value of that tract, with interest from the 14th day of August, 1841; and that in default thereof both tracts be sold, subject to the mortgage to the state, and the proceeds paid to the plaintiff; and that, on such sale being made, Noah Francis assign to the purchaser the certificate of purchase held by him from the fund commissioners.
This decree we think can not be sustained. The permitting of the lands to be sold under the mortgage to the state, was a just cause of complaint; but that was adjusted by the execution of the mortgage to the plaintiff, in which Noah Francis joined. This mortgage became simply an indemnity to the plaintiff to protect his land against the claim of the state. A mortgage held as an
From the view we have taken, it follows that the plaintiff was premature in proceeding to foreclose his mortgage. It further appears that the bill was defective for the want of parties. Had the bill shown a proper case for relief, on the ground that the plaintiff stood in the relation of a surety, and was liable to suffer from the default of his principal, the creditor should have been made a party. That the state could not be sued makes no difference. If the principal be not subject to the jurisdiction of the Court, as in the case of a sovereign state, the agent is a
Nor was there any occasion to decree a conveyance of the plaintiff’s land to himself, or an assignment of the certificate. The mortgage recited the sale to Noah Francis, by the commissioners of the sinking fund, and that it was given for the purpose of releasing and discharging the plaintiff’s land from the effect of said mortgage to the state and the sale wider it; and the condition followed the recital. This was an estoppel against any claim which Noah Francis might have set up under his purchase. It can-celled the certificate, and, at least, until some improper use was sought .to be made of it, furnished no ground of equitable relief. Jones v. Myers, 7 Blackf. 340. There was no contract to assign the certificate, nor to convey the land. The decree, therefore, seeks to enforce the specific execution of a contract which the parties never made.
Nor would a conveyance be necessary upon discharging the mortgage which the plaintiff had made to the state. The modern doctrine is that the mortgage is but a security, and that the mortgagor is the owner of the land. Payment is an absolute discharge of the property from the claim of the mortgagee. 4 Kent’s Comm. 194, note.
The decree is reversed with costs. Cause remanded,.with instructions to the Circuit Court to dismiss the bill.