Jett v. Cave

By the Court, Lacy, J. It is evident that the plea is defective, and was rightly adjudged bad. It fails to show whether the Bank or Brittin was in possession of the premises; or which of them was the actual occupier. This is a proceeding under our statute, in which the legislature seems to have designed to give to the party the double remedy of a court of law and of equity. The party is entitled to judgment for his debt and cost, which are to be first satisfied out of the mortgaged property, and if that is not sufficient, he can take his execution against the other effects of the defendant. Thus far the remedy may be regarded as a common law proceeding, differing from its course in no essential manner, except in pointing out in the first place what species of property shall be first sold to satisfy the demand, and not allowing execution against any other kind of property till the particular fund is exhausted. The party has the further remedy of foreclosing the equity of redemption, and in this particular, it is strictly a chancery proceeding. The suit is required to be prosecuted by petition, and this is also another feature of the practice of a court of equity. The remedy being given by statute, the party seeking to avail himself of its advantages, must be required to follow substantially the provisions of the act. The judgment of the court is a decretal order, and that must show that all the essential requirements of the statute have been complied with. This principle being conceded to-be true, it necessarily follows that the decretal order in the present instance will have to be set aside: it does not foreclose or bar the equity of redemption for which the petition prays, and which is ah indispensable requisite of the statute. Rev. St. chap. Cl, sec. 1 to 21. Decree reversed..