Benton v. Wood

Worden, J, Suit by Wood against Benton and his wife, to foreclose a mortgage. Judgment for the plaintiff. The only error relied upon to reverse the judgment is, that the Court did not find whether the mortgaged premises were susceptible of division without injury, and in not ordering it to be sold in parcels. 'It is only in cases where there are installments secured by the mortgage, and not due, (which was not the case here,) that the Court is required to inquire as to ;he divisibility of the premises. 2 R. S. 1852, §§ 637-8, p. 176. The land in this case consists of two forty acre tracts, which lie adjoining, though in different quarters of the same section, and may constitute a small, but entire farm. The order of the Court directed, that upon default of payment of the money, “ the same shall be enforced by a sale of said mortgaged premises, on execution,” «fee. A. McDonald, J. E. MoDonald, and A. L. Roadie, for the appellants. II. C. Newcomb and J. Tarhington, for the appellee. This order was well enough. Under the provisions of § 466 of the code, it is evidently the duty of the sheriff to determine the question of divisibility, in a proper case. And in serving an execution upon the judgment in this case, if the land be deemed to consist of two “lots, tracts, or parcels,” susceptible of a division, he would be required to sell in separate “lots, tracts, or divisions,” and no more than enough to make the debt and costs; but if division could not be made, he would be authorized to offer the entire premises. Per Curiam. — The judgment is affirmed, with 3 per cent, damages and costs.