Cubberly v. Wine

Perkins, J. Suit to foreclose a mortgage given to secure four notes of 125 dollars each, payable on the 1st of [354] October 1858, 1859, 1860, 1861. The first note was due at the commencement of the suit. Judgment by default. I. Van Devanter and J. F. McDowell, for the appellants. R. J. St. John, A. Steele, and H. D. Thompson, for the appellee. The judgment is as follows: “ R is therefore considered by the Court that the plaintiff recover of the defendant the sum of 133 dollars, 31 cents [the amount of the first note with interest], together with his costs, taxed at-, to be collected without relief from valuation laws. It is further adjudged that the premises described in the mortgage, be sold on execution for the payment of said judgment, as on execution on a judgment at law.” This judgment is for the sale of the entire mortgaged premises. It does not appear that the Court inquired whether the land mortgaged could be sold in parcels; and no provision was made as to the notes not due. These things should appear by the record to have been done. See Greenman v. Pattison, 8 Blackf. 465; Lacoss v. Keegan, 2 Ind. R. 406; Allen v. Parker, 11 id. 504. These cases show the practice. Per Curiam. The judgment is reversed with costs, back to the default. Cause remanded, &c.