Kirby v. Childs

The opinion of the court was delivered by Brewek, J.: i. Redemption law. Decree. Defendant in error, Childs, brought his action in the district court of Miami county to foreclose a mortgage. •The answer admitted the execution of the note and mortgage, ■and plead payment. This was the only issue for trial. The jury found for the plaintiff, and for the amount of their verdict judgment was rendered and an order made for the sale of the real estate. As error in the proceedings of the district court it is insisted, first, that “the judgment cuts off the equity of redemption in ten days after the close ^ tlie term,” whereas by the law in force at the time of the execution of the mortgage, October 12th 1867, the judgment-debtor had two years to redeem. This is a mistake. The decree contains no order of foreclosure of the equity of redemption. There is a judgment for money, and an order of sale of the mortgaged property, and nothing smore. The ordinary clause barring and foreclosing all par [643] ties from and after the sale, is omitted. Whether the equity be indeed cut off depends not on the form of the decree, but upon the law determining the effect of the sale. If a sale under such a mortgage is without redemption, then the purchaser would be entitled to a deed; if with redemption, then only to a certificate; and whether the purchaser be entitled to a deed or certificate, and whether there be a right to redeem or not, axe questions which the district court has not attempted by this decree to settle. A sale must be ordered, whether- there be redemption or not. If the debtor was entitled to redemption, it is enough to say that the court has not attempted to deprive him of this right. The decision in Lender v. Caldwell, 4 Kas., 339, is wholly inapplicable. There the decree contained a formal order barring and foreclosing all right and equity of redemption. „ „ ^ fees?*1 several parcels. Again, it is objected that there was error.in ordering the sale of all the property mortgaged, as more than half the original debt had been paid; and it is insisted that the order should have been for the sale of only so much as was necessary to pay the judgment and costs. All ^he pr0per¿y was pledged as security for the debt. Until all the debt was paid the entire property was chargeable. There is nothing in the record to show the present value of the property. The whole of it may not sell at sheriff’s sale for enough to pay the judgment. How then can we say that the error, if error there were, has wrought any prejudice to the plaintiffs in error? But there was no error. No application was made to the district court to direct the order in which the property should be sold, or to regulate in any respect the manner of the sale. The order was to sell in satisfaction of the judgment and costs. When the judgment and costs were satisfied the order had spent its force. The sheriff had no further right to sell. [644] 3. personal judgment. [643] Again, it is insisted that there was error in renden' ng a judgment for money against Mrs. Kirby. She did not sign the note, but simply joined with her husband in the mortgage. This point is well taken. She made no promise to pay, but [644] simply relinquished her rights in certain propgrty. it is per husband’s debt, not hers. No personal judgment against her was therefore proper. 4. Motion for Newíy-dtócov“evK ence' It is claimed also that the motion for a new trial on the ground of newly-discovered evidence should have been sustained. The affidavits used on the motion are in the record, but the evidence on the trial is not preserved. For aught then that appears the testimony may have been purely cumulative. Larrimore v. Williams, 30 Ind., 18. These being all the questions raised, the case will be remanded to the district court with the instruction to set aside the personal judgment for money against Mrs. H. R. Kirby. In all other respects the judgment and decree will be affirmed. The costs in this court will be divided. All the Justices concurring.