McDowell v. Lloyd

Lowe, Oh. J". 1. Mortgage: foreclosure, A foreclosure is a statutory proceeding to which the court will apply the principles of both law and equity jurisdiction. Kramer v. Rebman, 9 Iowa, 114; Tomlinson v. Funston, 1 Green., 545. A court of equity having acquired jurisdiction over the subject-matter for one purpose, may be invested with jurisdiction for other purposes, so as to secure complete equity and justice between the parties. Franklin Ins. Co. v. McCrea, 4 Green., 229. 2. _ equity jurisdiction. It is a principle of chancery practice, often recognized and acted upon, that when the court once obtains jurisdiction over the parties and the cause, it will ref;ain £]ie same until the controversy be finished. The importance of this rule of chancery practice, may be and is sometimes illustrated in the foreclosure of a mortgage, which has been given to secure a debt payable by installments. 3. — sale for installments due: disposition of surplus. It is conceded that when the first installment falls due, a foreclosure as to that may be had, and the mortgage premises sold, or so much thereof as may be necessary to pay the same, it the property , . „ I 1 J should be indivisible, as is often the case, and the whole of the mortgage premises sold, leaving a balance in the officer’s hands after satisfying .the first installment, what is to become of this balance ? To pay it over to' the mortgagor would be manifestly unjust, for the reason that it takes from the mortgagee the security which he is rightfully entitled to for the unpaid portion of his claim, and in doing so he would be injured, rather than benefited, by the foreclosure. It would seem there is but one alternative in cases of this kind, in order to [451] reach the ends of justice, and. that is for the court to retain the custody of the money, and have it applied on the unpaid installments as they fall due. 4. — foreclosure for installments. If so, why not, having obtained jurisdiction, retain the same over the parties and cause until the whole debt falls due, that a foreclosure may be ordered, if the , ° same is not paid; especially when this is ashed to be done in the petition, as in this ease? So far from such a practice prejudicing the mortgagor it would save him costs, and at the same time advance the remedy. This rule of practice is not new with some courts. In the cases of Clark v. Abbott (1 Maddock Ch., 474); Massina v. Bartlet (8 Porter, 284); Smalley v. Martin (1 Clark, 293); Adams v. Essex (1 Bibb., 149), it was recognized and acted upon. In the last named case the court remarked : The chancellor, having once jurisdiction of the cause, ought not to turn the parties round at the hearing, to begin ds novo, but should go on and finish the controversy. The last installment became due before the cause was heard, so that the chancellor might well, as he has done, embrace the whole case in one decree. In the case at bar, at the November Term, 1866, a foreclosure was. taken upon the two installments, and when the suit was commenced, on the 1st of January following, the third installment fell due, being in time for the plaintiff to have commenced a new suit and to have had a foreclosure at the next February Term. Instead of requiring him to do this, the court held and continued its jurisdiction in the premises till the February Term succeeding, in order to give to the plaintiff a decree or judgment on the last payment of his claim against the defendant. In doing so, the defendant suffered no prejudice and lost no extension of time thereby, for the plaintiff, by an original suit, could have got a foreclosure at the same term, but with increased cost to the defendant, so that, in fact, there is nothing .in reason [452] or principle against tlie adoption of such a rule of practice, and we are inclined to uphold the action of the court in overruling the demurrer, and accordingly will affirm the same. Affirmed.