Hunt v. Dohrs
Before: Rhodes
Synopsis
Mortgage—Judgment oe Foreclosure before the Debt is Due.—A judgment for the principal of a promissory note secured by mortgage, before it becomes due, and an order for the sale of the mortgaged premises for its payment, is erroneous.
Idem.—Foreclosure for Interest.—Judgment may be had for the sale of so much of the premises as may be necessary to satisfy the interest due.
Idem.—-Personal Judgment for Deficiency.—A personal judgment cannot be docketed against the defendant in a suit for foreclosure of a mortgage, until it is ascertained by the Sheriff’s return that a balance remains due.
Rhodes, C. J., delivered the opinion of the Court:
The judgment for the principal of the promissory note is erroneous—because the complaint shows, that when the action was commenced, the note had not become due. The plaintiff might have taken a judgment for a sale of so much of the mortgaged premises, as might be necessary to satisfy the interest then due; but the order for the sale of all the premises was erroneous. The personal judgment against the defendant was erroneous. (See Practice Act, Sec. 246.)
Judgment reversed, and cause remanded,
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