Taggart v. San Antonio Ridge Ditch & Mining Co.
Before: Cope
Synopsis
In an action to foreclose a mortgage to recover a debt, upon which nothing but the interest was due, the Court below decreed a sale of the property, and directed that the proceeds be applied to the payment of the entire debt; and further decreed, that in case of deficiency of proceeds, plaintiff recover of defendant the balance, and have execution therefor: Held, that the latter clause of the decree, giving judgment and execution for the deficiency, must be so modified as to exclude that portion of the debt not due; that as to this the power of the Court under the statute was exhausted by decreeing a sale of the property.
Cope, J. delivered the opinion of the Court Field, C. J. and Baldwin, J. concurring.
This is an action for the foreclosure of a mortgage executed- to secure the payment of a debt, upon which nothing but the interest was due. The Court decreed a sale of the property, and directed that the proceeds be applied to the payment of the entire debt; and further decreed, that in case of the insufficiency of the proceeds, the plaintiffs recover of the defendants the balance, and have execution therefor. This latter clause of the decree must be so modified as to exclude that portion of the debt not due; for as to such portion, the Court exhausted its authority in decreeing a sale of the property. This was the full extent of its power under the statute; and we shall order a modification of the decree as stated. Thus modified, it will be permitted to stand, the plaintiffs paying the costs of the appeal.
Ordered accordingly.
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