Bowers v. Crary

By the Court, Sanderson, J.: This is an action to restrain the collection of a balance due on a judgment foreclosing a mortgage.

The judgment of foreclosure was rendered on the 19th of January, 1861. The mortgaged premises were subsequently sold by the Sheriff, who returned a deficiency which was docketed on the 3d day of October, 1861. For the unsatisfied balance thus due, the defendant Crary caused an execution to be issued on the 10th day of May, 1866—more than five years after the judgment of foreclosure was rendered, but less than five years after the balance left due by a sale of the mortgaged premises was docketed.

The only question presented is whether the period of five years, within which an execution for an unsatisfied balance on a foreclosure sale may be taken out, commences to run from the date of the judgment of foreclosure or from the date when the balance was docketed.

The provisions of the Practice Act applicable to the question are found in sections two hundred and nine and two [623]hundred and forty-six. The first provides that “ a party in whose favor a judgment is given may, at any time within five years after the entry thereof, issue a writ of execution for its enforcement, as prescribed in this chapter.” The latter prescribes the manner in which judgments of foreclosure are to be enforced, and is to the effect that “ the Court shall, by its judgment, direct a sale of the encumbered property (or so much thereof as -shall be necessary) and the application of .the proceeds of the sale to the payment of the costs and expenses of the sale, the costs of the suit and the amount due to the plaintiff. If it shall appear from the Sheriff’s return that there is a deficiency of such proceeds and a balance still due to the plaintiff, the judgment shall then be docketed for such balance against the defendant or defendants personally liable for the debt, and shall, from the time of such docketing, be a lien upon the real estate of the judgment debtor, and an execution may thereupon be issued by the Clerk of the Court, in like manner and form as upon other judgments, to collect such balance or deficiency from the property of the judgment debtor.”

It will be observed that nothing is said in this latter section as to the time within which process may be issued, either for the sale of the encumbered property or for the collection of any deficit that may be found to exist after a sale has been had, but the language is confined to the form of the particular kinds of judgments therein provided for, and the mode and manner of enforcing them.