Gamut v. Gregg

Day, J. The vendor of real estate, when part or all the purchase-money remains unpaid after the day fixed for payment, may file his petition asking the court to require the purchaser to perform his contract or to foreclose and sell his interest in the property. In such cases the vendee, for the purposes of foreclosure, is to be treated as a mortgagor of the property purchased, and his rights are to be foreclosed in a similar manner. Revision of 1860, §§ 3761 and 3762. Upon the foreclosure of a mortgage of real estate, if any thing be found due the plaintiff, the court shall render judgment therefor, and must direct the mortgaged property, or so much thereof as is necessary, to be sold. Revision of 1860, § 3661. The statute provides the only mode of subjecting mortgaged property to the payment of the debt which it secures. What is known as a strict foreclosure has no place in our system of procedure. The court erred, therefore, in forfeiting to plaintiff the interest of defendant in the land mentioned. The decree should have been for a foreclosure and sale of the defendant’s interest therein. Reversed.