Edwards v. Helm

Citations

• 5 Scam. 142

Syllabus

<p>Error to Madison.</p> <p>i. Practice in Chancery — relief on answer. The complainant filed his bill in chancery to foreclose a mortgage executed to him upon certain premises, to secure the payment of a debt due from the mortgagor to the complainant, and also the liability of the complainant and another person, as sureties of the mortgagor, upon a note to [*143] oneC, The bill prayed for a strict foreclosure of the mortgage, solely for the debt du the complainant. D, one of the defendants, answered the bill, and alleged that the note upon which the complainant was liable as surety had been assigned by C to D, and suit had been instituted upon the same, and a judgment rendered thereon against the mortgagor alone, the other makers of the note not having been served with process; that execution had issued upon this judgment, and the mortgaged premises had been sold to satisfy the same, and also several other tracts of land; that the note and judgment had not been paid or satisfied, except by a sale'of the mortgaged premises, and offering to relinquish his right to the land if the sale could be set aside, and asking that the complainant be permitted to foreclose the mortgage, only upon condition of his paying the judgment. He also alleged that the premises were worth no more than the amount for which they were sold at the sheriff’s sale : Held, that it would not be equitable to permit the complainant’s liability as surety to be discharged by sale of the lands mentioned in the mortgage, and then allow him, in a court of equity a strict foreclosure of the mortgage upon the same lands, or compel D to redeem the mortgage, by paying the full worth of the lands again. Held, also, that as other lands had been sold upon the judgment, in part satisfaction of the same, it would be equally unjust to compel the complainant to pay the whole judgment debt; and as the value of these lands did not appear, the supreme court could not make a decree in the cause, but would remand the sa