Benner v. Troughton
Before: Baldwin
Synopsis
Plaintiff sues T.'and wife to foreclose'a mortgage. Bollins intervenes, claims a mechanic’s lien, suggests that one Wilson has a mortgage on the property, . and asks that he be made a party, which is done. Wilson answers, and among other things, sets up his mortgage, and prays that the bill be dismissed, and that the Court enter a decree foreclosing his mortgage in the usual way, and for general relief. The Court tried the case, and filed its findings, establishing the mortgages of plaintiff and Wilson and the lien of Bollins. All parties moved for judgment according to the findings, which was granted : Held, that Wilson ' having set up his mortgage, and prayed for foreclosure, etc., and moved for judgment on the findings, cannot now object to the foreclosure of his mortgage that it was not in the power of Bollins, as intervenor, to bring him into the suit; and that his mortgage covered not only property embraced in plaintiff ’s mortgage, but other and distinct property.
Baldwin, J. delivered the opinion of the Court Cope, J. concurring.
The errors assigned are technical exceptions, not sustained by the record, or the appellants cannot avail themselves of them—such as the alleged irregularity in Wilson’s mortgage. Wilson, it seems, set up his mortgage and prayed a sale of the property, and moved for judgment upon the findings. We think he cannot now object to the foreclosure of the mortgage as prayed for.
We see no substantial error in the decree.
It is affirmed.
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