Withers v. Morrell , 3 Edw. Ch. 560 ( 1842 )

The Vice-Chancellor :

There is no question about the complainant’s right to a decree for a sale of the mortgaged premises and payment of the debt and costs out of the proceeds as far as the same will go. But the question is, whether the complainant shall have a decree over against the mortgagor personally for a deficiency ?

The answer of the defendant, John Morrell, shows that he gave the bond and mortgage in part payment of the purchase money for a number of lots, including those mortgaged ; that his grantor had no title ; and that under the deed to him he has no title to four of the lots embraced by the deed and in-eluded in the mortgage. The answer is silent about the possession of the four lots—whether it is in the defendant or ever j,as keen . Aether he has been evicted or not; or whether the possession is held adversely under title paramount or what that title is—but the answer rests on the broad and general assertion that his immediate grantor, David Codwise or those who conveyed to Mr. Codwise (the complainant being one of them) had no right, title, estate or interest whatsoever in four of the lots, “ and the deed from Mr. Codwise to the defendant has conveyed no right, title or estate or interest whatsoever in or to the said four lots.” Upon this answer, the court is not required to decree the defendant exonerated even pro tanto from the mortgage debt. For the purpose of exonerating himself from personal liability, the defendant should file his bill; and, if he can make out a proper case for relief, he can then have a decree to that effect; but, in the meantime, is this court bound to decree payment against him personally ? The statute says that this court shall have power to decree payment by the mortgagor of any balance of the mortgage debt that may remain unsatisfied after a sale, but the statute on this point is not imperative. The court may decline to make such a decree and authorize the mortgagee to proceed at law for the recovery of such balance. There is enough disclosed in the answer to warrant the court in withholding that part of the decree and in leaving the complainant to sue at law on the bond, when the defendant will have an opportunity of making what defence he can ; and, if he shall think proper to do so, of filing a bill to be relieved touching the payment of the purchase money of the four lots of ground in question.

Decree—for the foreclosure and sale of the mortgaged premises in the usual form ; but add, with liberty to the complainant to sue at law for any balance that may remain unsatisfied.