8 Port. 277 | Ala. | 1838
— In the arguments at the bar, the following points have been raised upon the assignments of error:
1. Where a defendant, served with subpoena in chancery, neglects to appear, so that the bill is taken pro con-fesso against him, and referred to the clerk and master to take and report an account, is it necessary that it should appear from the report made under the reference, that the defendant had notice of the time and place of taking the account?
2. Where a party executes a mortgage for the security of several sums of money, payable to the same person, and to fall due at different times, if on default in the payment of the first sum, the mortgagee file his bill to foreclose the mortgage, and pending the suit the other
3. Where a bill for the foreclosure of a mortgage, and a sale of the mortgaged premises, has been pending, and the defendant served with subpoena for several terms, is it competent to refer the bill, &c. to a master, to take and report an account, to receive his report, and render a final decree in the case at the same term?
4. Is it necessary, in a decree for mortgage, and a sale of the mortgag'd scribe some future day for the paymeij due upon the mortgage, befo're a foretjosurt
5. Is the sheriff competent to execu sale of mortgaged premises, upon the mortgagor’s equity of redemption, and should not thq decree require a return of the proceedings thereon to court.
1. By the second section of the act of eighteen hundred and twenty-three, “to regulate proceedings in chancery suits,” (Aik. Dig. s. 14, p. 287,) it is provided, that if the defendant docs not file his answer within the time prescribed by law, after the service of subpoena, “ the bill •shall be taken pro covfesso, and the complainant, if he deem'it necessary, may take an attachment to compel an answer.” A defendant, who does not regard the mandate of the subpoena, must be understood to have set at defiance the authority of the'law, and to place himself In contempt of the process of the court. It is on this legal assumption, that he subjects himself to an attachment. And, according to the practice prevailing in the English Chancery, a party who does not regard its pro.
In Heyn vs. Heyn, (Jacob’s R. 49; 4 Cond. Eng. Ch. R. 25,) the defendant was served with subpoena, but declined answering, and stood out all process of contempt. The case was then set down for hearing, and an order obtained for taking the bill ¡>ro covfesso, and a decree for an account before the master. The defendant, at the next term thereafter, moved that he might be at liberty to put in his answer forthwith, which he undertook to do, and to pay the costs occasioned by his contempt, and that all further proceedings as to the bill being taken ■pro confesso, be stayed, the defendant submitting to such decree as the court should think fit. The Lord Chancellor, in delivering his opinion, said: “I apprehend that when the bill i« taken pro ronfesso. the defendant is not
2. A mortgage is regarded in equity as a security for
In regard to the first question, the court say, that the case before it, being a suit in equity, ought rather to be “governed by the liberal principles which govern in covenant, assumpsit and special agreements, than those technical and rigid rules which are applicable to the action of debt only. Wc are, therefore, of opinion, that the suit was properly commenced, although but one of the instalments was due at the filing of the bilí”
In respect to the second question, it is remarked, “that the chancellor having once jurisdiction of the cause, ought not to turn the parties round at the hearing, to begin de novo; but should go on to finish the controversy. In the case before the court, the last instalment became due before the cause was heard, so that the chancellor might well, as he has done, embrace the whole case in the decree.” This conclusion seems to us so just iu itself, that wo are disposed to adopt as correct, the principle upon which it proceeds.
8. The bill, in this case, was pending for more than a year after the service of a subpoena on the plaintiff in error, and the decree was not rendered until the third term of the court after it was filed. Under these circumstances, the plaintiff cannot complain that the cause has been hurried to a close with unreasonable despatch. By the fifth section of the act of eighteen hundred and twenty-three, already cited, it is enacted, that “it shall not he required to file a replication to an answer; and in all bases whore the answer is filed ten days before the sitting of tiie court, or the bill is taken pro confrsso for
4. It is the practice in England, upon the foreclosure of a mortgage, for the decree to direct, upon the nonpayment of the principal and interest due, at a given day, that the mortgagor's equity of redemption be forever gone, and that the title vest in the mortgagee — (4 Kent’s Com. 173; 3 Powell on Mortgages, 998, 999.) Though this is the general practice, yet, sometimes the mortgagee prays for and obtains a decree for the sale of the mortgaged premises, under the direction of an officer of the court, and the proceeds of the sale will, in such a case, be applied .towards the satisfaction of a mortgage, and the excess, if any, paid over to the mortgagor.
'The practice.of naming some future day in the decree, When the money ascertained to be due should be paid,
Besides, it must be remarked, that real estate is subject to levy and sale under a fieri facias in this country, the issuance of which is authorised immediately after judgment. Now,.if it were required by a decree of foreclosure to give day to the mortgagor, a mortgagee would be in a less favored condition than a judgment creditor,
• 5. The decree, in this case, is unusually brief. It merely confirms the report of the clerk and master, (which ascertains the amount due upon the mortgage,) •adjudges that the mortgagor’s equity of redemption be foreclosed, and that the mortgaged premises be sold according to law, unless the sum ascertained to be due, be paid by him. That it was competent for the court to have directed the sale to be made under the direction of the clerk and. master, we have no doubt; yet, as the decree is silent in that regard, we‘think the execution is provided for by law, through the agency of a sheriff. The act of eighteen hundred and seven, “ concerning executions, and for the relief of insolvent debtors,” (Aik, Dig. s. 15, p. 162,) authorises the issuance of a venditioni exponas -to the sheriff, to make the amount of the decree by a sale of the property mortgaged; and the acts in regard to the notice, and time and place of sales under executions oh judgments at law, sufficiently indicate the proper course- of procedure by the sheriff, in a case like the- present.
'The sheriff would, of course, make'his deed to the purchaser, and return by endorsement on the process how he had executed it. If there was an excess of money produced by the sale, to that, as in ordinary cases, the mortgagor would be entitled; and the powers of the court
After considering all the points raised, our opinions are, that the proceedings of the Circuit court, though somewhat untechnical, are not erroneous; and the decree is consequently affirmed.