Giles v. Lewis

| Del. Ch. | Feb 15, 1868

The Court of Chancery has jurisdiction of a bill for the foreclosure of a mortgage on default in the payment of one installment, and will order the sale of the mortgaged premises before the entire principal falls due.

Bill in Equity.—This bill was filed to obtain foreclosure of a mortgage for $6,500, payable with interest, in six equal payments, in one, two, three, four, fivfe and six years, respectively, from date. The mortgage was given for part of the purchase money of real estate, and was dated- June 30th, 1866 : it was without any defaulting clause.

The bill prayed for a decree for the payment of the whole of the mortgage money, or in default thereof, that the mortgagers might be foreclosed of their equity of redemption, and that the mortgaged premises might be sold under a decree of the Court, and out of the proceeds thereof, that the full amount secured by the mortgage, and all interest due should be paid.

The defendants, by answer, and also by cross bill, set up various other alleged equities growing out of the circumstances of the sale, which are immaterial here.

The bill was entertained, and much testimony was taken, and the cause was prepared for final hearing at the September Term, 1869, when T. F. Bayard for the complainant and Layton and G. B. Rodney, for the defendants, filed an agreement under which the crossbill was dismissed, the answer in the original cause withdrawn, and the bill taken as confessed; and a decree was entered that the mortgage be foreclosed and the equity of redemption of the mortgagors forever barred ; and also, for the payment of the entire sum secured by the mortgage, forthwith, and in default, for a sale of the mortgaged premises.

This case and Giles vs. Lewis et al. here reported, though the decrees in both were uncontested, established the jurisdiction in equity for the foreclosure of the mortgage upon default in the payment of an installment, where the mortgage does not provide that the entire principal shall become due upon such default. So far as the assumption of jurisdiction by the Court is concerned, it does not detract from the authority of the present case that the decree was by consent, as that would not confer jurisdiction. Prior to these two cases, there is no reported instance of the exercise of the jurisdiction by the Court of Chancery in this State.