Wernwag v. Brown

3 Blackf. 457 | Ind. | 1834

M’Kinney, J.

This is a bill in .chancery to foreclose a mortgage, brought by Brown Morrison against Wernwag. A demurrer was filed to the bill, which we think was correctly overruled by the .Circuit Court. That Court rendered a decree in favour of the complainants.

The principal and only question to be decided is presented by the first error assigned, which is as follows: — “There is no sum decreed to be paid, but the amount is left open for the clerk or sheriff finally .to decree the amount due at the'time of sale, so that exorbitant interest may be calculated to that time.” The record shows, that the mortgage was executed to secure the payment of several sums of money due by judgments, notes, &c., upon a part of which' due by notes, interest was agreed to be paid at the rate of 25 per cent, per annum, and upon one note for 319 dollars and 49 cents, the sum of 12 dollars per month was agreed to be paid. The Circuit Court decreed, “That the amount of the several notes, judgments, and securities, mentioned in the said bill of complaint, and the conditions of said mortgages respectively, or so much thereof as may then be due and owing to the said complainants by the said William H. Wernwag, together with all interest, and the costs of this suit, and all costs on the judgments enumerated in the said bill of complaint, be paid to the said complainants on or before the 1st day of January next; and in default,” &e.

This decree is radically defective, — 1. Because it gives to the mortgagees interest at the stipulated rate to the 1st day of January next ensuing its rendition, the day on which the money is decreed to be paid; and 2. Because it leaves the sum to be paid, to be decided by the clerk or sheriff without the action of the Court.

C. Fletcher and W. Quarles, for the plaintiff. J. Morrison, for the defendant.

1. The case of Miller v. Burroughs, 4 Johns. C. R. 436, settles the first point, that after a decree the original contract is merged, and from that time the sum decreed draws only the legal rate of interest. So that in the case before us, although by statute the higher rate of interest agreed to be paid was recoverable by the decree ⁽¹⁾, yet after its rendition, interest at the rate of 6 per cent, per annwtji only should have been given. It appears by the record, that the term at which this decree was rendered was held in the month of September, and interest as stipulated by the contract was given to the 1st day of January ensuing. This was clearly erroneous.

2. A decree, as a judgment, should show on.its face what the Court has decided; and in Honore v. Colmesnil, 1 J. J. Marsh. 525, and Stagner v. Fox, id. 556, it is laid down, that a reference to the evidence filed, or to other records, &c. cannot be tolerated, and that no execution can issue on such a decree ox-judgment. The same principles are settled in Bonta v. Clay, 1 Litt. R. 27,—Farmer et al. v. Samuel, 4 Litt. R. 187,—and Griffith v. Depew, 3 Marsh. R. 177. In the first of these cases,' it is said that the decree or judgment should be certain and definite, and that nothing should be left to the clerk to ascertain, or sum up by reference to other parts of the record; and if it be not so, no execution can be issued by the order of the Court or otherwise. These cases are illustrative of the settled rules in chancery practice, and are deeply founded in reason and the respective duties of the Court and its ministerial officer. The duty of a Court either of law or equity, is to pronounce the law applicable to the facts presented; that of the clerk, to record the sentence of the Court. The duties of the one are distinct from those of the other, and the correction by the clerk of errors committed by the Court, would invest the ministerial officer with the duties and responsibilities of the judicial.

Per Curiam.

The decree is reversed with costs. Cause remanded, «fee.

(1) Vide Stat. 1833, p. 43.—Note to Harvey v. Crawford, Vol. 2, of these Rep. 43.