110 Ind. 234 | Ind. | 1887
The controlling questions in this case arise on the special finding of facts and the conclusions of law .stated thereon by the trial court.
The facts found may be thus summarized: On the 16th ■day of March, 1870, Francis M. Ashton and his wife executed to Hudson Watts a mortgage on the north half of the south half of lot seventy-five, as described in the old plat of the town of Rochester. On the 6th day Qf January, 1875, the Fulton Circuit Court rendered a decree and judgment in a cause wherein William Gillman was plaintiff, and William Ashton, David W. Lyons, assignee in bankruptcy of William .Ashton, Alfred H. Robbins, Hudson Watts and Francis M. Ashton were defendants. The decree was in favor of Hudson Watts on the aforesaid mortgage, for $1,035.90, and directed a foreclosure of the mortgage and a sale of the real ■estate described in it. It was also decreed, that in case the proceeds of the sale of the real estate described should not prove sufficient to satisfy the judgment, then Watts should have execution against any other property of Francis M. Ashton subject to execution, to satisfy the unpaid judgment. It was further decreed that Francis M. Ashton had executed a mortgage to Alfred H. Robbins, on the 1st day of February, 1869, upon the building situate on the north half of the south half of lot seventy-five, in the new plat of the town of Rochester, and that Robbins should recover on said mortgage the sum of $344.75 ; that the mortgage be foreclosed, a sale of the mortgaged premises be made, and that, after satisfying the judgment of Robbins, the proceeds from the sale of the real estate should be applied in payment of the judgment in favor of Watts. A certified copy of the decree was-issued to the sheriff, and, after due notice, he sold lot number isoventy-five in the new plat of the town of Rochester, to Edwin C. Cowgill for $500. On the 5th day of May, 1883,
The following conclusions of law were stated by the court:.
That the execution was duly issued;
The attack of the appellants is principally directed against the first of these conclusions, and it is contended that it is erroneous, because the appellee had no right to an execution, and because he could not sell any other property than that described in his mortgage and in the decree, until' that had first been offered for sale.
We think that the appellee had a right to an execution. The decree contains a personal judgment and authorizes an ■execution in case the mortgaged property does not sell for enough to satisfy the mortgage. If there had been no personal judgment, the appellee would not be entitled to an execution; but, as there is a personal judgment, he has a right to enforce it in the ordinary method.
The record shows that the property intended to be mortgaged was exhausted to satisfy the senior mortgage lien held by Robbins, and there was, therefore, nothing to be gained by again offering it for sale. It also appears that the lot erroneously described would have brought nothing, as the execution defendant had no interest in it, so that it would have been a fruitless thing to offer it for sale. To have offered it would simply have entailed cost and éxpense upon the-parties without any good result.
It is true that an execution can not be levied in ordinary cases until the mortgaged property is first exhausted. Fletcher v. Holmes, 25 Ind. 458. But this general rule can not apply here, for it here appears that a sale on a senior mortgage had exhausted the mortgaged property, and it could not again be offered for sale. The property described in the mortgage was not that which the parties intended to convey, and this appears from the decree made on the cross complaint of Robbins, for that decree shows that the two mortgages were in reality upon the same property.
The sheriff did not violate the law in offering the property for sale. Having offered the rents and profits of the lots for sale, and then the lots separately, he was justified in offering
Judgment affirmed.
