Buford v. Smith

[490] Opinion of the Court, delivered by Scott, Judge. Smith filed his petition in the court of common pleas for >-t. Louis county, under the statute concerning mortgages, alleging, that Buford had made to him a mortgage on certain lands, situate in St. Louis county, to secure the payment of two promissory notes, executed by Buford to Smith, for the sum of Si,‘250 each, one payable one year and the other two years after date; that the last of the said notes had become due ; and prayed that judgment might be rendered for said debt; that the equity of redemption might be foreclosed, and the mortgage property sold to satisfy the amount due. Henderson & Buford, the defendants below, pleaded in bar, that heretofore, in the sa me court Smith, under the statute concerning mortgages, had filed his petition for a foreclosure of the equity of redemption of the lands in the mortgage in the plaintiff’s petition mentioned, for the purpose of paying the first of the two notes described by the plain-tiffin his petition. That a judgment for the said debt, was rendeied against the said Smith, and an order made for the sale of the said lands, to satisfy the said debt; that, in pursuance of said order, an execution issued and the said lands sold by virtue thereof, to Geo. Henderson, the defendant, for the sum of $1,351, who received a deed from the sheriff for the said lands, upon payment of the said purchase money. To this plea, a demurrer was filed. The demurrer wassus-tained, and a judgment rendered for the plaintiff, from which the defendants appealed to this court. We can find nothingin thestatute concerning mortgages, which, would warrant the opinion, that if a creditor, whose jg secured by a mortgage, will proceed under its pro , • j o o a ^ i visions, and sell the-whole mortgaged promises in satisfac-°fa part of the debt, that he can afterwards, proceed against the same lands, in the hands of a purchaser, in order to obtain payment for a portion of the same debt, thereafter ^ue’ With equal propriety, if the first sale did not yield enough to pay the debt for which it was made, the creditor might,take the lands away from the purchaser, and [491] sell them to a second purchaser, and so loties quoties, until the debt was'satisfied. If the party will at onetime sell all the mortgaged premises,' and they do not bring enough to pay his debt, this should satisfy him that his security is insufficient, and not that he can sell the land a second time. It does not seem that the judgment in this cause meets with any support from the principles governing courts of eq-uity, in decreeing a foreclosure of the equity of redemption of mortgage 1 . lli England the practice is by bill in chancery, to obtain a foreclosure of the equity of redemption, whereby the lands become the absolute property of the mortgagee. There, if theequity of redemption of mortgaged premises isforeclosed, and they are not sufficient to satisfy the debt, and an action at law is brought to recover the deficiency, this, it has been held, will open the foreclosure and let in the equity of redemption, if the mortgagee has not in the mean time disposed of the land, for it would be inequitable that the right of redemption should be revived against a purchaser. 4 Kent’s Com. 183. So it has been held that if a party whose debt is secured by mortgage, will proceed at law on his bond, and sell the land tinder execution, tire purchaser will hpld' the same free from the lien of the mortgage. I Perón 44. So likewise it has been holden, that if the mortgaged premises are sold to satisfy the debt secured by them, and the morgagee becomes the purchaser, and afterwards brings an action for a balance of the debt remaining unpaid, the mortgagor will not, even against the mortgagee, much less against the third person, who had become a purchaser, be entitled to the foreclosure opened, and the equity of re-, demption revived. Lausing v, Gorlet, 9 Cowens, 346. Judgment reversed,