J. A. Hayward & Co. v. Stearns

Wallace, J., delivered the opinion of the Court:

The respondents brought this action against the appellant to obtain a decree of foreclosure of a mortgage and a personal judgment for such portion of the debt as should remain unsatisfied after a sale of the mortgaged premises, and a decree was entered accordingly.

It appears that on July 28th, 1864, the appellant delivered to Griffin his negotiable promissory note, to become due one year thereafter, and, at the same time, executed to Griffin a mortgage upon certain real estate, to secure the payment of the note.

A few days subsequently, the appellant delivered to Griffin another instrument in writing, in which he agreed with Griffin and George Lehman “that as, in the description of the mortgaged property and land mortgaged to them on the 28th day of July, 1864," certain errors had occurred, etc., and the instrument proceeded to substitute a farther and better [60]description of the premises intended to be included in the mortgage.

George Lehman was mentioned in this instrument, because he was the holder of a distinct mortgage, made by appellant, and intended to embrace the same premises, but in which the same mistaken description had been inserted. Whether the lien of the Lehman mortgage was prior or subsequent to that made to Griffin does not appear.

Before the note fell due, it was assigned by Griffin to Wolf-skill, in whose hands it became overdue. It subsequently passed successively to the hands of Turner and Sichell, and lastly to the respondents, who received it long overdue.

Lehman was not made a party to the suit, and it is insisted that the complaint is insufficient for that reason.

We do not think that the fact of his absence as a party, makes the proceedings in the foreclosure erroneous.

The creditors, the debtor and the title to the mortgaged premises were before the Court below, and were bound by the decree, and if other holders of distinct liens, who might have been made parties, are omitted, the foreclosure, while it may be incomplete as to them, is nevertheless sufficient in other respects.

The appellant filed an answer to the complaint, in which he set up, that while the note remained overdue in the hands of Turner, the latter was, and still is indebted to him in a sum of money greater than the amount of the note sued upon, and he pleaded that indebtedness as a set-off against the note in the hands of respondents.