Aldrich v. Sharp.

O. H. BROWNING, for the plaintiff in error, contended, 1. That the Court erred in making a final decree in the cause at the same term the process against the defendant was returnable. 2. In decreeing that the defendant in the Court below should pay to the complainant the amount of the debt mentioned in the mortgage, with interest, without a reference to ascertain the amount of said debt and interest, and without ascertaining the same by the decree. Martin v. Wade's exrs., 5 Monroe 80; Chany v. Cook, 5 Monroe 249; Edwards v. Cuncliffe, 1 Mad. R. 160; Wernwag v. Brown et al., 3 Blackf. 457; 4 Johns. Ch. R. 436; 4 Bibb 19; 4 Littell 192.

3. In decreeing that the complainant below should recover twelve per cent. interest upon the amount of the debt in the mortgage mentioned, after the rendition of the decree, until the same should be paid. Wernwag v. Brown et al., 3 Blackf. 457.

4. In making a decree before a rule had been taken to answer, and decreeing that Aldrich should deliver to Sharp, the complainant below, all the muniments of title to the S. E. 20, 1 S., 8 W., only one half of said quarter of land having been mortgaged by Aldrich to Sharp.

5. In approving the report of the commissioner who sold the mortgaged premises, said report neither showing the time and place of sale, nor the price for which said land was sold, and being otherwise defective.

6. In pronouncing a final decree upon the coming in of the report of the commissioner aforesaid. Coates' extrix., v. Muse's admrs., 1 Brock. 535; 2 Johns. Ch. R. 201.

7. In awarding a writ of habere facias possessionem. 8. In not directing what appropriation money arising from the sale of the land. matier, 1 Monroe 66.

should be made of the Downing et al. v. Pal

J. A. MCDOUGALL, for the defendant in error, cited 4 Ohio 291.

TREAT, Justice, delivered the opinion of the Court:

On the 12th of June, 1837, Aldrich, the plaintiff in error, conveyed to Sharp, the defendant in error, by deed of mortgage, certain real estate situate in Adams county. The mortgage is conditioned for the payment of the sum of $450, on the 12th of December, 1837, with interest from the date of the mortgage, at the rate of twelve per centum per annum. In November, 1839, Sharp filed his bill in chancery in the Adams Circuit Court, against Aldrich, to foreclose the mortgage. At the April term, 1840, the bill was taken pro confesso against Aldrich, and the Court thereupon decreed, that Aldrich, on or before the 10th day of September, 1840, should pay to Sharp the sum of $450, the principal of the mortgage, with interest at the rate of twelve per centum per annum, from the date of the mortgage, until the payment of the same

Aldrich v. Sharp.

should be made, deducting there from the sum of $52.84; and in default of such payment, that Aldrich should surrender up to Sharp the evidences of the title, and that the mortgaged premises be sold at public auction, for cash, and conveyed to the purchaser, by a commissioner named in the decree. At the January term, 1841, the commissioner reported, that, in default of payment, he had sold the mortgaged premises, as required by the decree; that Sharp, being the highest bidder, became the purchaser thereof, for the sum of $686, to whom the commissioner had made a conveyance of the land. The Court approved of the sale and conveyance, and decreed that a writ of habere facias possessionem issue, directed to the sheriff of Adams county, commanding him to deliver to Sharp immediate possession of the premises sold under the decree.

To reverse these decrees, Aldrich prosecutes a writ of error to this Court, and presents several assignments of error, two only of which will be considered:

First. It is contended, that the decree of foreclosure is erroneous, because the amount due on the mortgage is not ascertained by the decree, and because the decree directs the payment of twelve per centum per annum interest, from the rendition of the decree. We are of the opinion, the decree, in both these respects, is erroneous. It was the duty of the Court to ascertain the amount of principal and interest due on the mortgage, at the time the decree was made, either by a reference to the master, or by computation by the Court, and to direct the payment of the amount thus ascertained, with legal interest thereon. This has not been done, and, besides, the decree is so uncertain that the amount due on the mortgage cannot be determined from it. It directs the payment of $450, with interest at the rate of twelve per centum per annum from the date of the mortgage, deducting $52.84. Whether the last sum is to be credited to the principal, or to the interest, does not appear, nor does it appear when the credit was to be given. If to be credited as part payment of the principal, instead of the interest, the amount due at the entering of the decree, would be materially lessened. This Court decided, in the case of Mason et al. v. Eakle, (1) that where a judgment is obtained on a contract, the contract is at an end, being merged in the judgment, and the judgment is controlled, not by the contract, but by the statute, which gives interest only at the rate of six per centum per annum. We see no reason why the rule should not be applicable to decrees in chancery for the foreclosure of mortgages. The object of the suit at law is to determine the amount due on the contract, that the creditor may enforce its collection out of the property of the debtor. The suit in chancery is instituted to ascertain the amount due from the mortgagor, and to coerce its payment by a sale of the property pledged.

(1) Breese 52.

Williams v. Waldo et al.

Second. It is contended, that the subsequent decree is erroneous, in awarding the writ of habere facias possessionem. It is a well established principle, that when a court of chancery obtains jurisdiction of the subject matter of a suit, it will retain the jurisdiction, to the end that complete justice may be done between the parties. It has the power to decree a sale of the mortgaged premises, and thereby to pass the title to the purchaser, and will put him in possession, instead of driving him to his action of ejectment. It would be but partial justice to adjudicate upon the rights of the parties, and vest the title in the purchaser, without affording a remedy to carry the adjudication into full effect. The court, having the power to dispose of the title, has the right to control the possession. The mode by which the possession is to be transferred, is well settled by the practice in courts of equity. When the decree of foreclosure directs the mortgagor, or the party in the possession of the mortgaged premises, to surrender up the possession to the purchaser, the court, upon an affidavit showing the service of a copy of the order, accompanied with a demand of the possession, and a refusal of the party to comply, will issue a writ of execution of the order to put the purchaser in possession. But where the decree of foreclosure contains no such order, the court, on motion, will make the order, and upon the like service of a copy, and demand of possession, the court will, on motion, and without notice, order an injunction against the party to deliver possession, and then, on affidavit of the service of the injunction, and refusal to deliver possession, a writ of assistance to the sheriff, to put the purchaser in possession, issues of course, on motion, and without notice. This was determined to be the proper practice, in the case of Kenshaw v. Thompson et al., (1) upon a careful examination of the practice in the English courts of chancery. In this case, no order was made upon Aldrich to deliver possession of the mortgaged premises to Sharp, the purchaser, and the writ of habere facias possessionem was improperly awarded.

The decrees of the Circuit Court are reversed with costs, and the cause is remanded for further proceedings conformable to this opinion.

Decree reversed.

RICHARD S. WILLIAMS, plaintiff in error, v. JAMES E. WALDO et al., defendants in error.

Error to Morgan.

Where, after a decree of foreclosure of a mortgage had been entered, and the mortgaged premises directed to be sold, and a deed to be executed to the purchaser; the

(1) 4 Johns. Ch. R. 610.

Williams v. Waldo et al.

legislature passed an act requiring all property sold upon foreclosure of mortgage, to be appraised, and prohibited its sale unless it would sell for two-thirds its appraised value, and authorizing the mortgagor to redeem the same at any time within one year from the sale: Held, that the act was constitutional, and a sale without such valuation was erroneous; and that a deed could not be executed to the purchaser, until the expiration of the right to redeem.

All judgments and decrees are taken subject to such changes as the law making power may adopt for the purpose of enforcing them.

The doctrine that the remedy provided by law to enforce a contract, is a part of the contract, and incorporated into it, has been long since exploded. The true doctrine is, that remedies afforded by law to enforce a right or obligation, are no part of the same.

A decree in chancery, or a judgment at law, is not a contract.

Semble, That a court of chancery may, at any time before sale, modify or change the terms and conditions of the sale of property ordered to be sold by such court, on foreclosure of mortgage, as equity and good conscience may require.

THIS cause was heard in the Court below, before the Hon. Samuel D. Lockwood. The facts appear in the opinion of the Court.

The cause was submitted on briefs.

H. B. MCCLURE, for the plaintiff in error, contended,

1. "That the decree was a vested right; that it was a chattel, which, with all its incidents and provisions, would go to his administrator, was devisable, &c. Blac. Com. titles Personal Property, Chose in Action, Acquisition by Judgment; Kent's Com. Idem.; Peters' Cond. R. 179, Chase's Definition of Vested Rights.

2. "That by the rules by which the courts of England and this country have been governed, in construing and applying laws, the act of 1841 ought not and cannot constitutionally be so construed and applied, as to divest the rights of the complainant under his decree. Beadleston v. Sprague, 6 Johns. 103; Dash v. Van Kluck, 7 Johns. 477; Gillmore v. Shuter, 2 or 12 Mod. 310; 2 Levinz 227; 2 Jones 108; 4 Burr 2460; 1 Blackf. 220; 2 Gallis. 105; 1 Blac. Com. 44; 6 Bac. Abr. 370; Co. Litt. 360, a; Ogden v. Blackledge, 2 Cranch 262; 1 Vent. 330.

3. "That if the plaintiff in error acquired a right to the execution of his decree, according to the term thereof, the legislature of Illinois could only deprive him of that right for the use of the State, and not even for that purpose, without rendering an adequate compensation. § 1, 8, 11, 16, of 8th Article of State Constitution; 1 Kent's Com. 445; 2 Kent's Com. 339-40; 1 Blac. Com. 138; Vanhorn's Lessee v. Dorrence, 2 Dallas 304; Language of Chase in Calder et al. v. Bull et al., 1 Peters' Cond. R. 174; 3 Story's Com. 266-8; Bowman v. Middleton, 1 Bay 252; Language of Story in 2 Peters 657-8; Fletcher v. Peck, 2 Peters' Cond. R. 319-21, Language of C. J. Marshall; Terrett v. Taylor, 3 Cond. R. 260, 262, Language of Story."

Williams v. Waldo et al.

BREESE, Justice, delivered the opinion of the Court:

The complainant, Williams, filed his bill in chancery in the Morgan Circuit Court, against the defendants, to foreclose a mortgage executed by them to him. At the March term, 1840, of said Court, a final decree of foreclosure was rendered, and a sale of "all the right, title, and interest of the defendants, in law and equity, and all equities of redemption in the" mortgaged premises, and directed at public vendue, after four weeks' notice, to the highest bidder, for cash in hand; and that upon the sale, a deed should be executed to the purchaser or purchasers, for the lands sold; and a commissioner was appointed to execute the decree and order of sale, and to report his proceedings in the premises to the next Court. At the October term, 1841, the commissioner reported that he gave due notice of the sale on the 8th day of July, 1841, and sold the premises on the 9th day of August following, and that the complainant became the purchaser, to whom a deed was executed, which was brought into Court for approval.

Upon the coming in of this report, the defendants entered their motion to set aside the sale, on the ground that the lands sold were not valued before the sale, according to the act regulating the sale of property, approved February 27, 1841. (1) It was admitted by the parties, that the sale had been made by the commissioner, without any valuation or appraisement. The Court disallowed this motion, and confirmed the proceedings of the commissioner, except that part of them relating to the execution of a deed to the complainant, which was disapproved, the Court deciding that the premises were subject to redemption by the defendants, under and by virtue of the eighth section of the act to amend an "Act concerning Judgments and Executions," approved February 19, 1841. (2)

Both parties excepted to the opinion of the Court; the complainant, for deciding that the premises were subject to redemption, and the defendants, for confirming the sale without a previous valuation of the premises, and bring the record here with an agreement that either party may assign errors; and accordingly, the defendants assign as error the refusal of the Court to set aside the sale, because the land had not been first valued; and the complainant assigns as error the decision of the Court, that the premises sold were subject to redemption by the defendants. These assignments of error necessarily involve the construction of the two acts above referred to.

The first section of the act regulating the sale of property, approved February 27, 1841, provides, "That when any execution shall be issued out of any of the courts of this State, whether of record or not, and shall be levied on any real or personal property or both, it shall be the duty of the officer levying such execution,

(1) Laws of 1841, 172.

(2) Laws of 1841, 171.