37 Mich. 164 | Mich. | 1877
The ease made by the bill is that in. the year 1868 Henry Lemon being considerably indebted,
Many objections are taken to the decree which require no notice. The following are sufficiently important to merit attention:
1. That Mrs. Lemon was not personally liable for the demand. This, we think, is well taken. Mrs. Lemon did not owe the debts, and she made no promise to pay them. If she can be hold liable it must be on the ground that by accepting the agreement for conveyance of the land to her, she by implication promised to pay the amount. But it is provided by statute that “no mortgage shall be construed as implying a covenant for the payment of the sum thereby intended to be secured,” which we think is decisive
2. It is objected that the decree could embrace nothing not due when the suit was commenced. We decided otherwise in Vaughn v. Nims at the last term. [36 Mich. 297.}
The provision in the decree awarding execution before it is known that any deficiency will exist ought not to have been inserted. Our attention has been called to similar provisions before, and they are probably not uncommon. But execution cannot issue without special application on showing of the right to it; and the clause in question is liable to mislead the complainant into irregular action. For this reason it is mentioned here as a provision that should always be omitted.
The decree should be modified in the particular of Mrs. Lemon’s personal liability, and in respect to the execution clause. In other particulars it will be affirmed. Mrs. Lemon will recover costs of this court. As Mr. Lemon seems to haye been an unnecessary party, and has deceased since the decree, complainants will be at liberty to discontinue as to him.