McCornick v. Brown

Citations

• 22 Idaho 52
• 125 P. 197
• 1912 Ida. LEXIS 18

Syllabus

<p>Foreclosure op Mortgage — Sufficiency of Complaint — Execution op Mortgage — Findings and Judgment.</p> <p>(Syllabus by tbe court.)</p> <p>1. A complaint which alleges that M. S. executed and delivered to W. S. McC. four promissory notes personally, and thereafter that a mortgage upon certain mining claims was executed and delivered by M. S. personally, and by W. D. S. and P. S. 8. and E. B. S. Van H., for the purpose of securing such several notes executed and delivered by M. S., and that sueh notes have not been paid and the amount is due, states a cause of action against M. S. personally and W. D. S., P. S. S. and E'. B. S. Van H. for the foreclosure of such mortgage.</p> <p>2. In an action to foreclose a mortgage given to secure notes executed by M. S., where such mortgage is executed by M. S., W. D. S., P. S. S. and E. B. S. Van H., and describes certain mining claims, and a decree of foreclosure is made by the trial court, the decree should be personally against M. S. and for a foreclosure of all right, title and personal interest of M. S., W. D. S., P. S. S. and E. B. S. Van H., in and to the property described in the mortgage.</p> <p>3. Where an aetion is brought to foreclose a mortgage against several parties and the complaint alleges that the mortgage was executed by such persons and the answer denies such execution, and it appears from the proof that such execution was by power of attorney, and the court makes a finding that the defendants did execute such mortgage, such finding is sufficient upon the issues made by the pleadings, and it was not reversible error on the part of the court in failing to find whether the attorney in fact was duly authorized to sign the mortgage as such attorney in fact. The finding of the ultimate faet in issue in the case, to wit, that the defendants executed the mortgage, was sufficient under the issues made by the pleadings.</p>