Judson v. Emanuel

ORMOND, J. In the case of Levert et al. v. Redwood, (9 Porter 79,) the same objection which is now urged as to the proof of the mortgage and notes, viva voce before the chancellor, and the absence of the proof from the record, was made; and the court held, that oral testimony might be received at the hearing, to prove written instruments, or other documentary evidence. The court say, “ the power to admit viva voce evidence being shown, it must follow as a necessary consequence, that the chancellor must also have that of stating what the evidence is, and it would be wholly unnecessary for him to pursue the precise statements of the witnesses, as such a course would frequently encumber the record, with much immaterial and superfluous matter. The objection in the present case, is, that the mortgage and notes are not set out in hsec verba. The chancellor states, that the mortgage and notes were produced and proved in open court. It would be a most unreasonable inference to draw from this statement, that they were other, or variant, from those described in the bill; and even in a contested suit, we*, should deem this statement sufficient, when referring to the-identical papers, which were the foundation of a suit.” The case just cited on this point, is identical in all respects, with this; and as we are entirely satisfied with the decision there-made it is decisive of this question. It is further insisted, that as it is shown by the bill, that Blood-good had also an interest in the debt, that notwithstanding he has not answered, yet as it appears by the bill, it should have-been referred to the master to state an account. When a bill is exhibited to foreclose a mortgage, all incumbrancers, prior as well as subsequent, must be made parties to the-bill, otherwise they will not be barred by the foreclosure and sale of the premises. Haynes and others v. Beach and others, (& Johns. Chan. Rep. 459.) In this case, Bloodgood was made a party to the bill, and process served on him, but he failed to appear and answer, and it is now insisted, that the decree is erroneous in not assertaining the amount due Bloodgood on the mortgage, thereby exposing the mortgagor to another suit at the [602] instance of Bloodgood. If this result should follow, it will not be the fault of the complainant, he has done all in his power to settle the litigation in or.e suit, and cannot be deprived of his right to obtain a decree for his debt, by the refusal, or neglect of another, whose debt indeed, for any thing that appears to the contrary, may be paid. For the error first assigned, that the decree was made at a time when the court had no power to sit, the decree must be reversed and the cause remanded, on the authority of the case of Cullum v. Casey, at the present term.