Lacoss v. Keegan

Perkins, J. On the 2d day of March, 1849, Keegan filed his bill in the St. Joseph Circuit Court, against Lacoss and others, to foreclose a mortgage. The mortgage was executed to secure a debt payable in instalments, the first of which fell due on the 1st day of February, 1849; the second, the 1st day of February, 1850; and the third, the 1st day of February. 1851. Lacoss and wife, two of the defendants, answered, confessing the bill. Bowman and Russell, other two of the defendants, made default, and as to them the bill was taken as confessed. At the April term of the Court, 1849, it was referred to a master in chancery to report upon the condition of the mortgaged premises. He reported that they were not susceptible of division, and should all be sold together; and thereupon it was “ ordered, adjudged, and decreed by the Court that the said defendants do pay to the said complainant the said sum of 214 dollars [being the amount of all the instalments, due and not due, secured by the mortgage] within ninety days,” &c., or in default, &c., that the whole of the property be sold, &c. This decree is erroneous. It should have been that the defendants pay the complainant 70 dollars and 62 cents, the amount of the instalment then due, and, in default of such payment, that the property be sold to make the whole debt, being 214 dollars. Suffern v. Johnson, 1 Page, 450. — R. S., p. 461, ss. 39, 40, 41, 42, 43, 44. In the Ontario Bank v. Strong, 2 Page, 301, it is said the master’s report on the condition of the mortgaged property should state the reasons why the property is not susceptible of division, if he so report; and see Greenman v. Pattison, 8 Blackf. 465. Per Curiam. The decree is reversed with costs. Cause remanded, &c.