| Conn. | Feb 15, 1870
We think there is manifest error in the judgment of the Superior Court.
The petitioner by the levy of his execution took only the interest of the mortgagor in the mortgaged premises so far
It is manifest that the land. cannot be divided, for the mortgagee has the right to the whole as security for his claim, and he cannot be compelled to take a portion of the land in payment, for he has the right to the whole unless his claim is paid in money. The statute is conversant about rights that may be divided, and not about those which are incapable of division; and a sale is allowed only in cases where the interest of all the parties concerned would be more promoted by a sale than by a division. Therefore rights incapable of being divided are incapable of being- sold.
Furthermore- the mortgagee, by the terms of his deed, can not be compelled to relinquish the mortgaged property till his debt is paid; but this proceeding would compel him to do it on the promise that his debt would be afterwards paid. Suppose the property should not sell for more than half enough to pay his claim, must the sale be stopped, when once ordered by the court; or must the decree of the court be conditional, that the property should sell for enough to pay the' mortgage claim ?
Again; if the mortgagor, or those standing in his place, can süstain a petition against the mortgagee, to sell the mortgaged property, no doubt the mortgagee might sustain a like petition against the mortgagor, or those representing his interest, and we should have the novel practice of proceedings of this kind in lieu of petitions of foreclosure; which would be contrary to the stipulation of mortgage deeds, and contrary to the law regarding real estate. If a party seeks to obtain satisfaction for his claim from real estate, he must take.it in payment of his debt, or at least so far as the value of the land extends.
These considerations show that there is manifest error in
The judgment is reversed.
In this opinion the other judges concurred.