Rice v. Cribb

By the Court, DixoN, C. J. A reference to the judgment roll sent with this case, shows that the counsel for the appellants was mistaken in supposing that the referee named in the order of reference had failed to comply with its requirements. The report was a full and complete answer to all matters referred to him. "We can discover no errors in the proceedings, from the time of the making of the order of reference, up to, and including the filing and confirmation of the referee’s report. The objection of usury is clearly untenable, and the fact, that there was no formal assignment of the mortgage produced and proven, cannot, at this day, be listened to, as a defense in a foreclosure action. The transfer of the notes carries with them the interest in the mortgage. We are of opinion, however, that the judgment, as rendered, is erroneous and irregular in matters of substance as well as of form, and that it must, therefore, be reversed. The action was commenced to foreclose a mortgage, where a part only of the principal sum secured, with interest, was due, the residue being payable at a future time. The judgment, instead of adjudging and determining the sum actually due to the plaintiff at the date of the report of the [183] referee, for principal and interest, and the amount secured "by, and unpaid upon the notes and mortgage, with interest to the date of such report, only adjudges and determines the sum actually due. There is no provision for a stay of proceedings under the judgment, in case the defendants should, before the day appointed for the sale, pay to the plaintiff, his attorney or the sheriff, the amount found actually due, with interest and costs. If this was necessary in a judgment like that in the case of Howe vs. English 6 Wis., 262, it is certainly equally so here. No reason can be urged for its insertion in that case, which does not exist in equal degree in this; and although I can see no particular necessity for it in either, yet as it has once been adopted by this court, no great harm or inconvenience can ensue from its enforcement when it is once understood by the profession. The only feature in which this case differs from Howe vs. English, is that there the referee found and reported that the mortgaged premises were so situated that they could not be sold in parcels, while here he found and reported that they could be so sold. The mortgagor’s right, by payment, to stop proceedings, is of course not affected by this circumstance. But the most substantial defect in the judgment under consideration, in our opinion, consists in its failure to make any provision, or to give any direction, as to the instalments of principal or interest which were thereafter to become due. The judgment is in the precise form in which it would have been, if the principal and interest actually due were the entire amount secured by or unpaid upon the mortgage. The pleader seems to have acted upon the idea that he was at liberty to proceed in this manner to enforce the payment of the sum actually due; and that upon the judgment thus obtained having performed its functions, or upon the payment of the same by the mortgagors, and a default accruing in the payment of a future instalment of principal or interest, the plaintiff could commence a fresh action' of foreclosure. A glance at the provisions of sections 86, 87, 88, 89 and 90, of the statutes of 1849, under which this judgment was entered, which are identical with sections 4, 5, 6, 7 and 8, of chapter 145, of the statutes of 1858, will show that this notion is quite a [184] mistaken one. Tbe first section provides, that whenever an action shall be commenced for the satisfaction or foreclosure of any mortgage, upon which a part only of the principal or ■interest shall be due, and other portions to become due subsequently, the action shall .be dismissed, upon the defendant’s bringing into court, at any time before the order of sale, the principal and interest due, with costs. The second, that if, after an order of sale shall be entered against a defendant in such case, he shall bring into court the principal and interest due, with costs, the proceedings shall be stayed; but the court shall enter judgment of foreclosure and sale, to, be enforced by a further order of the court upon a subsequent default of payment of. any principal or interest iliereaftei' to grow due. The third, that if the defendant shall not bring into court the amount due, with costs, or, if for any other cause judgment shall be entered, the court shall direct a reference to a jDroper officer, to ascertain and report the situation of the mortgaged premises; and if it shall appear that the same can be sold in parcels, without injury to the interests of the parties, the judgment shall direct so much of the premises to be sold as will be sufficient to pay the amount then due, with costs, and such judgment shall remain as security for any subsequent default. The fourth of the sections above referred to declares, that if, in the case mentioned in the preceding section, there shall be any default subsequent to such judgment, in the payment of any portion or instalment of the principal, or of any interest due upon such mortgage, the court may, upon petition of the plaintiff, by further order founded upon such first judgment, direct a sale of so much of the mortgaged premises to be made under the judgment, as will be sufficient to satisfy the amount so due, with the costs of such petition and the subsequent proceedings thereon; and the same proceedings shall be had as often as default shall happen. These provisions sufficiently show that there is to be but one judgment of foreclosure and sale. It being a proceeding in rem, as well 'as in personam, and most frequently attended with heavy expenses, it would, beside the inconsistency of allowing several judgments to be entered-for the foreclosure of one mortgage, be a most grievous burden, if [185] tbe mortgagors were to be subjected to costs of a separate action and judgment, on eacb default in tbe payment of any portion of tbe principal or interest. There can be but one judgment, and in a case like tbe present, it should contain an order that tbe plaintiff, upon default in tbe. payment of any instalments of principal or interest thereafter to grow due upon tbe notes and mortgage, be at liberty to come before tbe court, and, upon petition, to obtain a further order, founded on such judgment, directing tbe sale of so much of tbe mortgaged premises as will be sufficient to satisfy tbe amount so due, with costs of -petition and subsequent proceedings thereon, and so on from time to time, as often as a default shall happen. This-, in our opinion, is tbe course of proceeding plainly indicated by tbe statute; and in a case like tbe present, it might be very doubtful whether, after taking a judgment like that appealed bom, tbe plaintiff could, on default of tbe payment of'a future instalment, resort to tbe mortgage as a security to enforce it. We were referred by the respondent’s counsel to the forms commencing on pages 615 and 617 of the 2d yolume of Barbour’s Chancery Practice. That commencing on page 615, is where a part only of the debt is due and the premises cannot be sold in parcels. It was upon this that Howe vs. English was decided. That beginning on page 617, is where a part of the debt is not due and tbe premises-can be sold in parcels. It was this last which tbe counsel says be pursued in the present case. An examination of it, if we are to go to. forms to ascertain the law, will show that it not only finds tbe amount actually due, but the sum secured and unpaid upon tbe mortgage,-and also that it decrees that on the foot of the judgment a farther order of sale may be made, to satisfy any subsequent instalment of principal or interest which may thereafter remain unpaid. In this respect it was probably a compliance with’the requirements of the statutes of New York, from which our own 'aré for tbe most part taken. This court has frequently held that a reasonable solicitor’s fee, in case of foreclosure, might be stipulated for in the mortgage and recovered in the action; and in the present case we do not think it unreasonable that the plaintiff, in ad [186] dition to bis statutory costs, should recover that which, the defendants agreed to pay. The judgment must be reversed, and the cause remanded for further proceedings in accordance with this opinion.