2 Ind. 516 | Ind. | 1851
John Roswell filed his bill in chancery in the Elkhart Circuit Court, setting forth that in September, 1843, James Upson, and Nathaniel A. Doan were the owners of 80 acres of land, described in the bill, and that they mortgaged the same to secure the payment of 120 dollars, which mortgage, soon after its execution, passed, by assignment, to Abner P. Simonton, the defendant to this bill; that, after the execution of said mortgage, and before July, 1846, said Upson and Doan made a verbal partition between them, into parts of equal value, of said 80 acres, and respectively took possession accordingly, Upson of 20, and Doan of 60 acres; that in July, 1846, Upson sold and conveyed his 20 acres to the plaintiff, Roswell, who took, and has since held, possession of them, and made valuable improvements; that in December, 1846, the mortgage debt having become due, Simonton filed his bill against Upson and Doan, and, in April, 1847, obtained a decree of foreclosure and sale upon said mortgage, which decree was for 145 dollars and 50 cents and costs, then amounting to 18 dollars and 20 cents; that, on the 14th day of August, 1847, the whole of the 80 acres of land mortgaged was sold on said decree for 200 dollars, Simonton being the buyer; that said Simonton has since recovered judgment in ejectment, and is about to put the plaintiff out of possession. The bill charges that a part of said mortgage-debt had been paid before the decree of fore
The plaintiff had no right to require Simonton first to sell the 60 acres of his (plaintiff’s) co-debtor for the purpose of making the entire debt of both debtors out of the property of one. There could be no equity in that. He had a right before the sale to file a bill to redeem the mortgaged land; and, had he done so, he would have been required to redeem the whole of it, with the right of holding the whole, when redeemed, till he should be repaid half the amount, with interest, by his co-debtor. 2 Story’s Eq. s. 1023, and notes.- — Eq. Pl. s. 186. — 2 Spence’s Eq. Jur. 666. Perhaps had he, before the sale of the mortgaged premises, tendered one-half of the amount of the decree and costs on which the sale was to be made, he might have compelled Simonton to first sell his co-debt- or’s half of the land before resorting to the half of the plaintiff for any deficiency there might still remain in payment. This would seem to be equitable. See Cohen v. Hannegan, in this Court, 1850
Had he been a party to the bill to foreclose, as he should have been, he might have availed himself, in that suit, of all the rights he would have had upon a bill to redeem. Not having been a party to that suit, he is not barred of his right to redeem by it; but he has no greater right since, than he had before, the sale under the decree
It is objected that the sheriff’s sale upon the decree was void for the reasons, that he did not sell the 80 acres in parcels, and that he sold more property than was sufficient to pay the debt; but it is not shown that he could have so divided the 80 acres as to have made the whole debt by the sale of any given part; and the excess of the proceeds of the sale over the amount of the decree, interest, and costs, inclusive of those incident to the sale, would have been but a very trifling sum, not sufficient to vitiate the sale.
The decree is affirmed with costs.
See ante, p. 379.