Johnston v. Watson

Sullivan, J. — Bill to foreclose a mortgage. The bill states that Johnston purchased from one Welch a lot in the town'of [175] Terre Haute, and, in part payment of the price, assigned to him a note on one A. C. Conn for the sum of 720 dollars and 43 cents, secured by a mortgage executed by Conn to Johnston on a lot in the town of Eugene. Johnston, further to secure Welch, executed to him a mortgage on the lot purchased from him. The mortgage contained a provision, that if Welch should be unable to collect Conn’s note, after having prosecuted a suit for the same with due diligence both at law and in equity, then the said mortgage should be in full force and virtue against Johnston for so much of said note as should remain unpaid. Welch, subsequently, for a valuable consideration, assigned the Conn note to Watson, and delivered to him the mortgages of Conn and Johnston respectively. Watson sued Conn on the note at law, and obtained a judgment against him, and sold on execution, amongst other property, the lot in the town of Eugene which was mortgaged to secure the debt, and at such sale became himself the purchaser. The amount made from the sale of all Conn’s property, real and personal, was between four and five hundred dollars, and it is to recover the balance claimed to be due to Watson that this bill is filed for a foreclosure and sale of the lot in Terre Haute mortgaged by Johnston to Welch, and by the latter assigned to Watson. The bill charges that Burton is a purchaser of the Terre Haute lot from Johnston with full knowledge of the foregoing facts. A decree was taken against Burton by default. Johnston answered the bill, admitting the material facts stated in it, but denying the complainant’s equity. Depositions were taken to prove the value of the Eugene lot, but the testimony is loose and unsatisfactory. At the final hearing the Court decreed in favour of the complainant. The simple question in the case is, whether the purchase of the Eugene lot by Watson, on his judgment against Conn, is a discharge of that judgment to the value of the lot. Watson was the assignee of Welch who was the assignee of Johnston the original mortgagee, and if the purchase of the lot by Johnston on a judgment obtained by him against Conn on the same note would have had that effect, it must have the same effect on a purchase under a judgment obtained by his assignee. As this Court has heretofore examined and de [176] cided the question, it is not necessary to discuss it again. In case of Murphy v. Elliott, 6 Blackf. 482, it was decided that a mortgagee who purchases the equity of redemption at sheriff’s sale on execution, thereby extinguishes the mortgage-debt to the extent of the value of the mortgaged premises beyond the amount bid for it. The principle there decided is strictly applicable to the case under consideration. This bill is filed to recover from Johnston the amount which the complainant as assignee failed, as he alleges, to make out of Conn. The case of Murphy v. Elliott, supra, shows that he is only entitled to recover the balance due after deducting the amount made by the sale of the personal property of Conn, and the value of the lot at the time of the sale. As we cannot correctly ascertain its Value, the cause must be returned to the Circuit Court for further proceedings. C. W. Barbour, for the plaintiffs. A. Kinney and S. B. Goolcins, for the defendant. Per Curiam. — The deci'ee is reversed with costs. Cause remanded, &c.