Davenport v. Davenport

Watson, J. The petitioner, a second mortgagee by virtue of a warranty deed in form but in fact a mortgage as between the parties, purchased the first mortgage, the same being duly assigned to him by an instrument signed, sealed, witnessed, acknowledged, and recorded. It is this mortgage which he here seeks to foreclose. At the time of the purchase, there were two contracts of prior dates in force between the petitioner and the defendant, touching matters of the holding of the real estate under the second mortgage, and collaterals held by the former as security for signing notes as surety for the latter, and against payments which he might be obliged to make thereon. But these contracts are entirely distinct from the first mortgage, and in no way relate thereto. Nor is the petitioner’s position under the contract such as to render it inequitable for him to purchase the first mortgage as he did, or to enforce it by foreclosure proceedings while the contracts are yet in force and being acted under. As evidence of the assignment of the first mortgage, a certified copy of the record was received subject to objection. In substance the evidence was proper, and it does not appear that any objection was made to its form. The petition and prayer are in the statutory form, the latter being, “that the equity of redemption in the premises may be foreclosed agreeably to the' provisions of law.” Evidence was received by'the master showing the value of the premises, against the objection that the prayer does not ask for shortening the time to redeem from one year, the time usually allowed for that purpose. But no prayer in terms specifically touching the time was essential to the admissibility of such evidence. For in [403] a case of strict foreclosure it is an incident of the remedy that the mortgagor be allowed a specified time, fixed by the decree, for the payment of the debt. The course is to fix a time in which the amount found due on the mortgage shall be paid, and on failure of payment within the time limited, the equity of redemption to be foreclosed. Smith v. Bailey, 10 Vt. 163; Perine v. Dunn, 4 Johns. Ch. 140; Clark v. Reyburn, 75 U. S. (8 Wall.) 318, 19 L. ed. 354. In the case last cited the decree of foreclosure was unconditional and made absolute at once, as to some of the defendants, without giving them time for the payment of the debt and redemption of the property. This was held to be a fatal defect in the decree. The time allowed for that purpose, says Chancellor Kent in Perine v. Bunn, rests in discretion, and is to be regulated by the circumstances of the particular case. It is urged in defendants’ brief that the exceptions to the master’s report, printed in the record, — covering three pages,— should have been sustained, without stating why or more specifically regarding any of them. In argument defendants’ solicitor was asked by the Court if he could point out any particular exception on which he relied more than others, to which he answered that he could not, but that he -relied upon them all. In such circumstances the Court will not hunt for errors. Decree affirmed and cause remanded. Let a new time of redemption be fixed beloio.