41 Miss. 284 | Miss. | 1866
delivered the opinion of the court.
This bill was filed by the appellees on the 15th August, 1859, to foreclose a mortgage executed by the appellants to secure the payment of five promissory notes, the first three of which had been paid; the fourth being due on the 1st January, 1859, and the fifth to become due on the 1st January, 1860. The
The first and main error assigned is, that the decree was made for the payment of a note not due at the time the bill was filed, and on .which no right of action had accrued at that time.
It appears that this note, though not due at the time the bill was filed, became due several months before the final hearing of the cause. If neither of the notes had become due at the time the- bill was filed, there could be no doubt that no bill could have been filed to foreclose the mortgage as to either of them. But, where one of them had become due, that gave the right to proceed for a foreclosure as to that, because the mortgage was forfeited; and it appears to be sanctioned by very respectable authorities and sustained by good reason, that in such a case it is competent to include in the decree of foreclosure other notes embraced in the mortgage not due at the time of filing the bill, but which became due before the final decree.
This rule commends itself as one of justice to the mortgagee, and as working no injury to the mortgagor. It enables the former to obtain no more than his just rights, and it saves -the latter from the expense of a new suit or suits to enforce the mortgage, as subsequent notes may become due after the filing of the bill. It is in accordance with the general principle of equity law to prevent multiplicity of suits. And in many cases it may be absolutely necessary to the purposes of justice that such a course should be pursued, as in the common case
This view of the subject is sanctioned by the cases of Adams v. Essex, 1 Bibb. 149; Mussina v. Bartlett, 8 Porter, 284, and by this court in James v. Fisk, 9 S. & M. 144, 153, which refers to other authorities with approbation.
It appears to be conceded by counsel for the appellants, that it would have been proper to include in the decree the note that fell due after the bill was filed and before the decree, if a supplemental bill had been filed for that purpose. But the bill, as filed, sets out that note and its time of maturity, and prays that it may be embraced in the decree of foreclosure, if it should become due and remain unpaid at the time when the decree should be made. Under this state of the case, the mortgagors would have been entitled to all the benefit of defence on account of that note after its maturity — which was some nine months before the final decree — that they would have had if a supplemental bill had been filed to include that note in the decree. No prejudice, therefore, was done them by including it in the decree, without a supplemental bill, inasmuch as they had notice by the original bill that that was sought to be done. A supplemental bill would then have been a mere matter of form
The remaining ground of error assigned is, that all the property conveyed in the mortgage was decreed to be sold, instead of so much as was necessary to pay the debt and costs.
But this is manifestly not a proper construction of the decree. It directs that all the mortgaged property, or so much of it as should be required to pay the debt and costs, should be sold. In practical effect, this means that all the property may be sold, if the whole of it should be required to pay the debt and costs; but that only so much of it as should be necessary for that purpose should be sold. This objection is without force. Let the decree be affirmed.
