Vaughn v. Nims

Campbell, J: This is a foreclosure case, iu which the chief defense was usury. The decree haying allowed this defense and [298] fixed the debt equitably, the cause is appealed by the defendants upon some minor grounds. It is first claimed that the court should not have decreed without a reference to compute the amount due; and that the decree should not have covered any thing which has fallen due since the suit began. These points are not well taken. The court should always pass for itself on the testimony, which in this case was all aimed at determining the amount of the mortgage debt. And while the statutes and the practice under them require a new inquiry into any installments accruing after decree (Brown v. Thompson, 29 Mich, R., 74), the practice has always prevailed of giving a decree for everything due at the time it is granted. In •this case the whole amount had become due, and no payments were pretended. . We have found no testimony in the printed record concerning an item of taxes of fifty-seven dollars and thirty-four cents,^ included in the decree. But it appears that, there is such a voucher in the original record, and there can be no doubt of the propriety of allowing a party to-protect his mortgage interest against taxes. The objection to its allowance is not well taken. As there was nothing to show that the land should be sold in parcels, and as it was originally described as one lot, there is no reason for disturbing the decree which allows a. sale as an entirety. The decree must be affirmed, with costs-.. The other Justices- concurred.