The Daily clarion. [volume] (Jackson, Miss.) 1866-1888, 1867-05-15
DECISIONS OF THE HIGH COURT
OF
ERRORS AND APP AIS
OCTOBER TERM, 1866.
PIERCE BURTON.
'homas 3. Magruder and wife

Edward NJ. Eggleston and wife.
Chief Justice Handy deiiUered the
Opinion Of tie Court.
This bill was filed by the appellees, on the
18th August 1859, to foreclose a mortgage
executed by the appellants to secuIe the pay
ment of five pronissOry notes, the first three
of which had been paid the fourth being
due LIST January 1860. The prayer is for an
account of the several amounts due on these
two notes, provided the last should have
become due and remain unpaid at the final
hearing. At October Term, 1859, the appel
lants filed demurrer, which was ovcrruled
and time allowed them TO answer. At Sprh
Term, 1860, and after the expiration of the
time allowed for their answer pro e0ntesSO
was taken against them; and at October
Term 1860, an account was taken of the
amounts due on both notes and decree of
foreclosure made, ordering a sale of all the
mortgaged property, or so much thereof as
should be necessary to realize the amount
found due the appellees, together with costs
and charges
The first and main error assigned is that
the decree was made for the payment of
note not due at the time the bill was filed,
and on which no right of action had accrued
at that time.
1t appears that this note, though not due
at the time the bill was filed became due
several months before thefnal hearing of the
cause. If neither of the notes had become
due at the time the bill was filed there
would be no doubt that no bill could have
been filed to foreclose the mortgage as to
either of them. But where one of them had
become due, that gave the right to proceed
for a foreclosure as to that, because the
mortgage forfeited; and it appears to
be sanctioned by very respectable authori
ties and sustained by good reason, that, in
such a case, it is competent to include, III the
decree of foreclosure. other notes embraced
in tue mortgage, not due at the time of filing
the BILL but which became due before the
final decree.
This rule commends itself as one of Justice
to the MORTGAGE and as working no injury
to the mortgagOr 1t enables the former to
obtain no more than his just rights and it
saves the latter from the expense of new
suit or suits to enforce the mortgage as sub
sequent notes may become due after the fill
ing ofthe bill II is in accordance with the
general principle of Equity law, to prevent
multiplicity of suits. And in many cases it
may be absolutely necessary to the purposes
OF justice, that such course should be pur-
sued as in the common case of one specific
and indivisible piece of property being con-
veyed by the mortgage and being the only
security for several instruments of debt. In
such case, If the property were sold only
for the payment of the instalment due at the
time the bill was filed, and it was sold under
the decree for much larger sum than that
due by the decree, the surplus would have
to be paid over to the mOrtgagor and would
he beyond the power of the mortgage, and
all benefit of the security # the mortgage
for the other instalments unpaid might be
lost to him. Thus the mortgage would
either be compelled to wait until all the in
stalments were due, before filing his bill to
toreclose, when he had the legal right to
foreclose for of the instalments as they
became due or to take the hazard, in fore
closing for a part of his debt, to lose the
right of having the full value of the mort
gagged property applied to the payment of
so much of his debt as might be due at the
date of the decree of foreclosure.
This view of the subject is sanctioned by
the cases of Adams VS.. Essex, i Bib, l49;
Mussina VS.. Bartlett, Porter, 2S4, and by
this Court in james VS.. Fisk, l44, 153, which
refers to the other authorities with appro-
baton.
1t appears to be conceded, by counsel for
the appellants, that it would have been
proper to include in the decree the note that
fell due after the bill was filed and before
the decree, if supplemental bill had been
filed for that purpose. But the bill as filed
sets out that note and its time of maturity,
and prays that it may be embraced i'll the
decree of foreclosure, if it should become
due and remain unpaid at the time when
the decree should be made. Under this
state of the case the mortgagors would
nave Dee0 eDIlIltu 10 All lIe DeIeHV OF ue-
Tense on account of that note. after its
maturity-which was some nine months
before the final decree-that they would
have had if supplemental bill had been
fled to include that note in the decree. No
prejudice, therefore, wasdone them by in
Guiding it in the decree, without a supple
mental bill, nasmuch as tt y had notice by
the original bill, that that was sought to be
done. A supplemental bill would, then.
have been a mere matter of form, in doing
that which was substantially done in the
original bill and it would have been attend
ed with additional expense.
The remaining ground of error assigned
is, that all the property conveyed in the
mortgage was decreed to be sold, instead of
so much as was necessary to pay the debt
and costs
But this is manifestly not a proper con-
struction of the decree 1t directs that all
the mOrtgaged property or so much of it as
should be required to pay the debt and costs,
should be sold. In practical effect, this
means, that all the property may be sold, II
the whole of it shOnld be required to pay the
debt and costs. but that only so much of it
as should be necessary for that purpose,
should be sold. This objection is without |
force.
Let the decree be affirmed
Elicit, o. having been of counsel for the |
appellants, did not sit in this case.