Tryon v. Sutton

Baldwin, J. delivered the opinion of the Court— Terry, C. J. concurring.

1. It is conceded by the counsel for the Respondent that there is an error in the decree in this case by an omission to give credit for one thousand dollars entered on the note. This seems to have been a clerical error, which the pleadings themselves disclose, and the Respondent is willing that it should be corrected here. As no motion was made for the correction in the Court below, the error would be corrected here at the cost of the Appellants, and the decree otherwise affirmed, if there were no other error in the record.

2. There seems to be another error in the decree, also shown by the pleadings and exhibits. In one of the mortgages attempted to be foreclosed the property is described as the south half of Lot 5, in square between J and K, Ninth and Tenth streets, and in the other mortgage, as part of Lot, No. 5. The decree directs the sale of the lot as first described under both mortgages, and, of course, a foreclosure of the mortgagor’s title and equity. It is very true that the mere indefiuiteness of the description in the mortgage is no objection to the enforcement of the mortgage as it is written, whatever the effect of the sale under such a description would be. It does not lie with the mortgagor to say that he conveyed the property by so loose or indefinite a description that no title could pass to a purchaser at a sale of the mortgaged premises. If nothing passes, it is the misfortune of the mortgagee, but the mortgagor is not hurt; if anj’thing does pass, the mortgagee is entitled to it. But this does not meet the objection; the complaint is that, by this particular description, property is or may be made to pass or bo sold which the mortgagor never conveyed. But this error, which attaches to only one of the mortgages, can bo corrected by the record.

8. We have intimated that this was a bill filed to foreclose two mortgages—one made 2d April, 1856, by Joseph Sutton and wife, to Aneslina Scbroedor, to secure a note of two thousand dollars, due at twelve months from date, with interest; the other mortgage, made the 10th day of October, 1857, by Sutton and wife, to the plaintiff here, for one thousand dollars, to secure a note of that date, due at six months, with interest.

[492]It seems that a jury was empanneled under the direction of the Court, who were instructed to find a special verdict. They found as follows: “We, the jurors, do not find any evidence to satisfy us that there has been any alteration in the papers since the execution.” The Court reserved its judgment, and directed the Clerk to compute the amount duo the plaintiff. After the Clerk had returned his report of the amount due, appears in the transcript á motion for a new trial and statement. By this it seems that the case was tried in July, 1858, by the Court, and a final decree entered for the plaintiff. The defense, in this -case, was that Mrs. Sehroeder, on the 21st day of August, 1857, assigned this two thousand dollar mortgage to Miss Bertha McKay, who entered satisfaction on the 10th day of October, 1857, on the records, in those words: “ Satisfied in full, this 10th day of Oct. 1857, Miss Beriha McKay, assignee of Anestine Sehroeder, by her Attorney in fact, E. H. Stanley.”