David v. Grahame

Buchanan. Ch. J. delivered the opinion of the Court. Three questions have been raised and submitted to the court in this case. 1. Whether there should not have been a decree to account, and the amount of the sum due ascertained, before the decree for a sale of the land was passed. 2. Whether the executor or administrator of the father of the appellants, the defendants below, should not have been made a party. 3. Whether instead of an absolute decree for the sale of the land, a day should not have been given in the decree to the ap* pellants for bringing the sum due into court. The answer to the first is, that the bill is for the foreclosure ©f a mortgage to secure the payment of a sum certain; which is [97] stated in the bill and deed of mortgage, with interest thereon, or a sale of the mortgaged premises for the payment of the amount due; stating that several payments had been made at different times, and showing by endorsements on the back of the mortgage deed, which is exhibited, the respective sums paid, and the times when; that the appellants, the defendants below, admit in their answer, the original debt and mortgage, and that the only payments made are those stated in the bill, and endorsed on the deed, and consent to a sale of the mortgaged premises for the payment of the balance of principal and. interest due to the complainant. The necessity, therefore, for a decree to account, in order to ascertain the sum due before a sale of the mortgaged premises was decreed, did not exist. It was neither a controverted nor complicated case; the debt is a single debt on bond secured by mortgage, and admitted in the answer, with consent to a sale of the mortgaged premises, for the-payment. The principal sum, and every payment made, appear by bill and answer, and nothing but a mere calculation of interest was necessary to show the whole amount due. The decree, moreover, is for a sale on a credit of twelve months, and contains an order to the auditor to ascertain and report the amount of the principal and interest, with all convenient speed; which is substantially all that was necessary to be done before the sale in this case. As to the second question. If it was a proceeding for the-sale of the real estate of a person dying without leaving personal property sufficient for the payment of his debts, it would have been necessary to make the executor or administrator of the deceased debtor a party — the real estate being only answerable in the event of the insufficiency of the personal property to discharge the debts, which is necessary to be shown before •a decree can be obtained for the sale of the real estate; and to that end it is proper and required, that he, who has the administration of the personal estate, should be a party; otherwise it would be extremely difficult to come at the fact of insufficiency of the personal assets; and real property might often be subjected to ,the payment of debts, for which it was not liable. "But this is not a case of that character. It is one in which a Creditor, under no obligation to look to the personal estate of [98] his debtor, in pursuing and seeking to subject to the payment-of his debt, a fund on which he has a specific lien, and with which the executor or administrator has nothing to do, and need not, therefore, be made a party. To the remaining question, it is a sufficient answer to say, that although ordinarily, under the third section of the act of 1785, ch. 72, the defendant is entitled to have a day given him to bring in the money, on a decree for the sale of mortgaged premises;yet, being for his benefit, he may waive it if he pleases, which appears to have been done in this case. The answer confesses the complainant’s claim, and consents to a sale for the payment of it, on such terms as to the court should appear equitable; thus untying the hands of the court, and giving a discretion over the question of time for the payment of the debt, to which the terms of the consent to a sale could alone effectively apply, and not to the terms of sale, over which the-appellants had no control, and could give none to the court by any consent or act of theirs — all sales in such eases being required by an express provision of the law to be for cash, except where a complainant shall consent to its being on a credit. And although a day for the payment of the sum due on the mortgage is not expressly given in the decree, yet the sale being directed to be on a credit of twelve months, it is equivalent to a. day being given to the appellants for the payment of the debt, and is entirely, we think, within the terms of the consent given in the answer to a sale. DECREE AEEIRMEB.