Christy v. Dana

Mortgage op Public Lards, when Title is Subsequently Acquired—Judgment op Foreclosure.—L. in his lifetime mortgaged to plaintiff a tract of land, being part of the public domain—on which D. resided—intending to claim the same as a pre-emptor. The mortgage was duly acknowledged and recorded. There was a provision in the mortgage to secure the repayment of such sums as the plaintiff might pay, for his greater security, in procuring a title to the land, and for a reasonable attorney’s fee in the event of a foreclosure. Thereafter D. filed his petition for the benefit of the insolvent laws, and in due course received his final discharge. Thereafter L. filed his claim in the Land Office to said land as a pre-emptor; plaintiff furnished the money to pay the Government price therefor, and in due course a patent was issued to D. Thereafter L. and wife conveyed the land by absolute deed to defendant IT. Thereafter ¡D. dying intestate, his wife—defendant J.—administered on the estate, which was insolvent. Thereafter and during said administration, on default of payment of the several sums secured to be paid by the mortgage, plaintiff brought action to foreclose against J., as administratrix, and IT.; and in complaint, after setting up the foregoing facts, prayed for a sale of the land mortgaged and an application of the proceeds of sale to the payment of the principal of his debt and interest thereon, until paid, at the contract rate, which exceeded ten per cent per annum, also said money advanced, and for one hundred and fifty dollars attorney’s fees, hut expressly waived judgment against the estate of 1). for any deficiency. In answer, J. confessed the complaint and consented to judgment as prayed; but IT. in answer set up as ground of equitable defense, the said insolvency proceedings and discharge of D., and that plaintiff's debts were barred thereby; that said conveyance by deed from D. and wife contained full covenants for title, and against all incumbrance of said land done or suffered by D., and that the consideration paid was the full value of the land. To the answer of N. there was no replication filed, which, under the statute as then existing, had the effect of confessing the truth of such new matter. Plaintiff had judgment as prayed for in complaint. Held, first, that said new matter set up in answer was of immaterial facts, only; second, that as no judgment passed against the estate of D., section 131 of the Probate Act had no application, and the judgment as to interest after administration commenced—notwithstanding the estate of D. was insolvent—was properj third, that the title to the land acquired subsequent to the mortgage under said patent, inured to the benefit of plaintiff as mortgagee; and fourth, that plaintiff was entitled to enforce his mortgage as against the land mortgaged, notwithstanding the personal liability of D. for the debts may have been barred by said discharge.