Lessee of Boswell and others v. Sharp and others.

IN BANK. The contract was an entire thing. So far as the title to the Dec. Term, real estate was concerned, as the land was within the jurisdic

1846.

tion of the Court, it is admitted that that was the place where the suit should have been commenced. It is not contended that the complainant could enforce that contract, specifically, elsewhere.

It is not disputed but the Court had jurisdiction over contracts affecting realty. This power is expressly conferred by the 12th section of the act of 1824.

The Court, then, had a case before them, as presented by the bill, over which they had jurisdiction, and were competent to decree. But what is the error complained of? That the Court, thus having a proper case before them, pronounced a wrong decree; that the Court should have decreed a conveyance of the land; that the money and services, expended and performed by the complainant, should have been treated as payment, by him, for the land. But the Court, instead of this, simply decreed him a compensation in money. It is contended that the Court had no jurisdiction to do this. If it was wrong, what is it more than error? It is the case of a Court pronouncing a wrong judgment or decree, in a case properly before it. This, on that hypothesis, is precisely a case for a bill of review; such error does not go to the jurisdiction of the Court.

In this view of the case, then, there is no lack of jurisdiction in the Court.

But it is said the Court had no jurisdiction, because there was not sufficient notice to respondents of the pendency of the suit, by publication.

The objection taken, is not that no notice was published, but that the notice published was not full enough.

It is claimed that the statute required notice to be given, by publication, of the pendency of the bill, and of the substance and the prayer thereof.

The notice actually given, was, that a bill in chancery was pending, and a prayer for a decree. The Court had directed the notice, in pursuance of the 7th and 12th sections of the act of 1824. The Court regarded this publication as a compliance

Freeby v. Tupper and others.

Dec. Term,

with the order made under the statute. The publication made IN BANK. was in the common or usual form adopted at that day, or, at least, in a form quite common.

Now, if there had been no notice at all, the objection would have been well taken. But as there was notice, adjudged to be sufficient, by the Court ordering it, we will not disturb it collaterally.

The description of the land, in the bill, is not very certain, but the bill seeks to reach land under a contract, and this is sufficient to bring the case within the statute. The fact that a bill, seeking to enforce a contract concerning land, does not describe very definitely the land embraced, does not go to the jurisdiction of the Court. We find no error which would authorize us to disturb the judgment.

Judgment Affirmed.

1846.

GEORGE FREEBY VS. THOMAS TUPPER and others.

Where a mortgagee recovers a judgment at law for any part of the money secured by the mortgage, and causes the mortgaged premises to be sold upon execution, the purchaser, at Sheriff's sale, takes the land relieved from the lien of the mortgage.

THIS is a BILL IN CHANCERY to foreclose a mortgage, reserved in SUMMIT County.

The defendants have severally answered. No testimony was taken in the case, but it is submitted upon an agreed statement of facts, which is embraced in the opinion of the Court.

Van R. Humphrey and H. Wheedon, for Complainant.

Wm. S. C. Otis, for Defendants.

The case was argued at length, but as it is similar, in principle, to the case of Fosdick's Lessee v. Risk, decided at the

Freeby v. Tupper and others.

IN BANK. present term of the Court, and reported at page 84, where the subject was fully discussed, the arguments are omitted.

Dec. Term, 1846.

HITCHCOCK, J. The facts of this case, as agreed by counsel, are, that on the 6th day of September, 1836, Freeby, the complainant, sold the land, covered by the mortgage, consisting of one hundred and ten acres, to the defendants, Thomas Tupper and Alanson Penfield. On the same day, Tupper and Penfield made three several promissory notes, payable to Freeby, for four hundred dollars each; one payable Sept. 1, 1837; another payable Sept. 1, 1838; one payable Sept. 1, 1839; and, also, one note for three hundred dollars, payable Sept. 1, 1840; and on the same day executed a mortgage upon the same premises, to secure the payment of said notes.

In September, 1837, when the first note fell due, suit was brought upon it, by Freeby, in the Court of Common Pleas of Portage county, and a judgment recovered, at the February term of said Court, 1838, for $446.68. On this judgment execution was taken out, and, by procurement and direction of Freeby, was levied on forty-four acres of land, part and parcel of the aforesaid one hundred and ten acres. The land thus levied upon was sold at sheriff's sale, on the third day of September, 1838, at and for the price or sum of five hundred dollars, this being a little more than two-thirds the appraised value. With the avails of this sale, the sheriff paid to Freeby the amount of his judgment, and interest, together with the costs. He also paid over to Tupper and Penfield, the judgment debtors, the residue of the purchase money, amounting to fifteen dollars.

In September, 1838, Freeby brought suit upon the note which fell due on the first day of that month, and at the February term of the same Court of Common Pleas, 1839, recovered a judgment for $469.90. On this judgment he took out execution, and caused the same to be levied on the remainder of the mortgaged premises, and the same were sold at sheriff's sale on the 27th day of May, 1839, and purchased by said

Freeby v. Tupper and others.

Alanson Penfield, at the price of $759-this sum being more IN BANK,

than two-thirds the appraised value. This money was paid to

the sheriff, with which he satisfied the last named judgment, and paid the surplus in his hands, amounting to $257.87, to Tupper and Penfield.

In September, 1839, suit was commenced by Freeby on the note falling due on the first day of that month. In this suit, judgment was recovered at the April term of the court, 1840. Alanson Penfield and Thomas Tupper have no real or personal estate subject to levy and sale, from which, on execution, this latter judgment can be satisfied, except 22% acres of the afore said premises, lying in common and undivided, in the sixty-six acres of said land which was sold upon the second judgment and execution.

On the 5th day of June, 1839, Alanson Penfield sold and conveyed all the aforesaid mortgaged premises to Horace Penfield, one of the defendants, by a deed of warranty, except the twenty-two acres before mentioned.

On the 5th day of December, 1839, Horace Penfield, being indebted to the President, Directors and Company of the Commercial Bank of Lake Erie in the sum of $1,500, by a mortgage deed conveyed all of the aforesaid mortgaged premises to the said President, Directors and Company, in full satisfaction of said debt, at which time said President, Directors and Company had no knowledge, in fact, of the existence of any incumbrance on said land, but supposed the same to be free of any incumbrance whatever.

The aforesaid sales, by the sheriff, of said mortgaged premises, were regularly approved by the Court, and deeds executed by the sheriff to Alanson Penfield prior to the date of his deed to Horace Penfield, and the said mortgaged premises were appraised under the statute, without any reference to the mortgage incumbrance, to the complainant.

This agreed statement of facts shows, that the mortgagee, not electing to rely upon his mortgage, the condition of which was broken by the nonpayment of the first note when it fell

Dec. Term,

1846.

Freeby v. Tupper and others.

Dec. Term,

1846.

IN BANK. due, commenced suit upon that note, recovered judgment, and caused a part of the mortgaged premises to be sold on execution. The money made by this sale was applied in satisfaction of his judgment. When the second note fell due, the same course was pursued. And now, after having caused the entire land to be sold on execution to satisfy the two first notes, he seeks to subject it to sale in equity to satisfy the two last notes. The case is not different, in principle, from the case of Fosdick v. Risk, decided at the present term. And it seems to the Court, that it would be manifestly inequitable and unjust to permit the mortgagee so to defeat the title of the purchaser at sheriff's sale.

It may be thought, that inasmuch as Alanson Penfield, one of the mortgagors, became the purchaser at sheriff's sale, a different rule should prevail than would have done had the purchaser been a stranger. But we can see no difference in principle. By this purchase, Penfield acquired a new title. Before, he held the land in common with the defendant, Tupper, subject to the incumbrance of the mortgage. By the purchase and sheriff's deed, he became the sole owner of the property, and that purchase having been made at a judicial sale, directed by the complainant himself, there can be no good reason why he should not hold it divested of the lien of the mortgage.

From the agreed facts, it would seem that although the lien of the mortgage was discharged by the sale on execution, that twenty-two acres of the land purchased by Penfield at that sale remained in him when the third judgment was rendered. If so, that judgment would operate as a lien. But it is not the lien of a judgment we are called upon to enforce, but the lien of a mortgage; and, in the opinion of the Court, there is not now any such subsisting lien.

Bill Dismissed at Complainant's Costs.