Franklin v. Roy

RHODES, J. — This is an action of ejectment. The defendants pleaded several defenses and filed a cross-complaint. The court adjudged that the defendant Le Roy (the other defendants being his tenants) take nothing by his cross-complaint, and that the plaintiffs recover the possession of the premises, etc. The defendant's claim to relief on his cross-complaint is based on a state of facts substantially as follows: Samuel Philips, being the owner of the premises, mortgaged the same, together with other lands, to Le Roy and Ritter, to secure the payment of a promissory note mentioned in the mortgage. The mortgage was foreclosed in the district court of the twelfth judicial district on the fifth day of March, 1859, and soon after the date of the decree the parties thereto entered into a stipulation, by which it was agreed that Le Roy should take charge of the premises, rent the same and collect the rents, and apply the proceeds to the payment of the judgment, after paying taxes, etc.; that the order of [807]sale upon the decree of foreclosure be stayed for the period of eighteen months from the date of the decree, and that if any portion of the judgment remained unpaid at the expiration of that time, an order of sale issue for the sale of the mortgaged premises. On the tenth day of September, 1860, another stipulation of the same character was entered into between the parties, by which it was, among other things, agreed that Le Roy should have the management of the premises, as provided in the first stipulation, and that the order of sale be stayed for the period of twelve months from the fifth day of September, 1860, and that if at the end of that time any portion of the judgment remained unpaid, an order of sale should be issued for the sale of the mortgaged property. It is alleged in the cross-complaint that in pursuance of those stipulations Le Roy entered into possession of the mortgaged premises, and has ever since continuously been in the possession thereof, and that there remains due on. the decree, after the application of the rents, the sum of nineteen thousand two hundred and fifty-two dollars and nine cents. No order of sale was issued after the expiration of the time mentioned in the second stipulation. The plaintiffs acquired their title to the premises after the execution of the mortgage. Le Roy is the owner of the debt which was secured by the mortgage. There are other facts stated in the cross-complaint, but they have no bearing upon the questions we shall consider.

The prayer is that Le Roy be adjudged to be the owner in fee of the premises, and if such relief cannot be granted, that an order of sale be issued for the sale of the premises, for the satisfaction of the amount due to Le Roy on the decree of foreclosure.