Hibernia Savings & Loan Society v. Jones

Foreclosure of Mortgages—Sale — Purchase by Plaintiff—Invalid Lien — Reversal upon Appeal — Supplemental Complaint — Accounting. — Where a parcel of land belonging exclusively to one of two mortgagors has been sold under foreclosure of two mortgages, and purchased by the plaintiff in the foreclosure suit, who has applied the pro-,5 ceeds wholly in payment of the first mortgage, which is thereafter adjudged upon appeal to have been invalid and ineffective as a lien against that parcel, and after such reversal the plaintiff has filed a supplemental complaint against such mortgagor alone, setting out the second mortgage, and claiming title under the foreclosure sale to all the property purchased thereat, and seeking an accounting of the whole indebtedness, and an application of the proceeds of sale in payment thereof, and judgment for the residue, the mortgagor who joins in the prayer for an accounting, in his answer to such supplemental complaint, is entitled to judgment against plaintiff, upon such accounting, for the residue of the proceeds of sale, with legal interest, after deducting the amount of the judgment for the second note and mortgage, with legal interest to the date of purchase, and the amount of counsel fees and taxes allowed by the court.

Id.—Estoppel of Plaintiff — Inconsistent Positions — Judgment of Foreclosure — Title under Sale not Stayed by Appeal — Accounting — Interest. — The plaintiff cannot treat the former judgment of foreclosure, the execution of which was not stayed by the appeal, as intact for the purpose of claiming title under the sale, and at the same time as open for the purpose of charging conventional interest on the second note and mortgage, compounding monthly, to the date of the accounting; and having proposed an accounting upon the theory that the foreclosure sale should stand, the plaintiff cannot complain that the court allowed an accounting to the defendant upon that theory, and only allowed legal interest upon the judgment to the date of the sale.

Id. — Regularity of Procedure — Objections upon Appeal. —The fact that the regularity of the procedure of the plaintiff by supplemental complaint was questioned by the defendant cannot he urged upon an appeal by the plaintiff from a judgment rendered upon the accounting in favor of the defendant, nor can plaintiff complain upon appeal of the mode of procedure adopted by himself, if no error was committed upon the accounting against the plaintiff in any other respect.

Id.—Amendment to Answer after Close of Evidence — Statute of Limitations — Taxes — Discretion. — Permitting the defendant, by an amended answer, to plead the statute of limitations, and to deny certain averments as to taxes and assessments paid, after the evidence was closed, is not erroneous, where consideration of the statute of limitations did not enter into the judgment, and it appears that there was no abuse of discretion in regard to the amendment as to the taxes.