Watts v. Palmer

Davison, J. Bill in chancery to foreclose a mortgage. The bill alleges, inter alia, that George W. Palmer sold and conveyed to one Benjamin Mayhew a lot of ground in Lawrenceburgh. To secure a part, viz., 100 dollars, of the purchase-money thereof, Mayhew executed and delivered a mortgage to Palmer, to foreclose which the bill was filed. It is further alleged, that after the execution of the mortgage, Mayhew conveyed the one undivided half to Squire Watts, one of the plaintiffs in error, who, at the time of the conveyance to him, had full knowledge of the mortgage. Mayhew died intestate before the commencement of this suit, leaving his wife, who is a defendant to the bill, and four minor children, his only heirs, who are also defendants. The record shows that process was served upon all the defendants. The minors answered by their guardian ad litem. The other defendants made default, and a decree pro confesso was entered against them. The Court, on final hearing, ordered the lot in question to be sold, &c., for the payment of the debt, &c. It is contended that the Court erred by ordering the tiole of the premises to be sold, &c.; that a part of them d been aliened, and the decree should have ordered the part not aliened to be first offered for sale, &c. The law applicable to the question thus presented is in the R. S. 1843, c. 29, s. 33 : “Whenever a bill shall be filed for the foreclosure or satisfaction of a mortgage, the Court shall have power to decree a sale of the mortgaged premises, or such parts thereof as may be sufficient to discharge the amount due on the mortgage and the costs of suit,” &c. The Court,in accordance with the power thus given, ordered the whole of the mortgaged premises to be sold. There is nothing in the record tending to show an improper exercise of that power in the case before us. Had it appeared by proof satisfactory to the Court, that the part of the lot not aliened was sufficient to discharge the amount due and costs, this case might present a different [577] question. But it does not appear that the premises were worth more than the debt. 3 Blackf. 403.—3 Ind. R. 401. P. L. Spooner, for the plaintiffs. N. T. Hauser, for the defendant. Per Curiam. The judgment is affirmed, with 1 per cent, damages and costs.