Persons v. Alsip

2 Ind. 67 | Ind. | 1850

Smith, J.

This was a bill to foreclose a mortgage. The bill alleges that Persons mortgaged a certain lot, in the town of Columbus, to Alsip), in October, 1846, to secure the payment of two notes; and that, in July, 1847, Persons executed a second mortgage to Washburn, the complainant, to secure a debt amounting to 367 dollars and payable on, the 1st of March, 1849. The bill further alleges that no proceedings had been had at law for the recovery of the complainant’s debt, and that the mortgaged premises were insufficient to pay both the debts with which they were charged. Persons and Alsip were made defendants and the complainant prayed for an account to be taken of the debts due; to be allowed to redeem the prior mortgage; that the equity of redemption be foreclosed ; and that the mortgaged premises be sold to pay the mortgage debts according to the rights of the parties.

A. A. Hammond, for the plaintiff. T. F. Thompson, for the defendants.

The record states that the process was duly served and the defendants called and defaulted. The cause was then’ submitted on the bill, exhibits, and proof, and the Court rendered a decree, finding that there was due to Alsip, on the first mortgage, 288 dollars and 12 cents, and to the complainant, on the subsequent mortgage, 263 dollars and 80 cents; and that, in, default of the payment of said sums within thirty days, the equity of redemption in said premises should be foreclosed and said premises should be sold and the proceeds applied — 1st. To the payment of Alsip's debt; 2d. To the payment of the complainant’s; and the overplus, if any remained, should be paid to Persons.

The only objection made to these proceedings is, that the decree should not have required the property to be sold for the payment of both debts, and that the Court should only have permitted Washburn to redeem the prior mortgage, and hold it with his own as a lien on the land.

We can perceive no force in this objection. The object of making Alsip a party was to authorize a decree to sell the land clear of the incumbrance of his mortgage, and the decree rendered is in conformity with the usual practice in such cases.

Per Curiam,.

The decree is affirmed with 1 per cent. damages and costs.