Brereton v. Miller

• Decision Date: 01 July 1891
• Court: Utah Supreme Court
• Parties: RICHARD BRERETON, RESPONDENT, v. CHARLES H. MILLER, APPELLANT

27 P. 81

7 Utah 426

RICHARD BRERETON, RESPONDENT, v. CHARLES H. MILLER, APPELLANT

Supreme Court of Utah

July 1, 1891

APPEAL from a judgment of the district court of the first district. The opinion states the facts except the following: "The organic act approved September 9, 1850, provided, at section 9, that the jurisdiction of the several courts shall be as limited by law, provided that the district and supreme courts, have chancery and common-law jurisdiction." This section is partly incorporated into the Revised Statutes, as section 1866. Then, in section 1868, Revised Statutes, is found the following: "The Supreme Court and district courts, respectively, shall possess chancery as well as common law jurisdiction." Section 3 of the Poland Bill approved June 23, 1874, provided: "The district courts shall have exclusive original jurisdiction in all suits or proceedings in chancery and in all actions at law, in which the sum or value of the thing in controversy shall be three hundred dollars or upward, etc."

Section 1 of Act of Congress, April 7, 1874, 18 Stat. 27, provided "That it shall not be necessary in any of the courts of the several Territories of the United States, to exercise separately the common law and chancery jurisdictions vested in said courts; and that the several codes and rules of practice adopted in said Territories respectively, in so far as they authorize a mingling of said jurisdictions, or a uniform course of proceeding in all cases, whether legal or equitable, be confirmed, etc."

Section 3460, 2 Comp. Laws 1888, which is section 606, Code of Civil Procedure, is as follows: "There can be but one action for the recovery of any debt, or the enforcement of any right, secured by mortgage upon real estate or personal property, which action must be in accordance with the provisions of this chapter. In such action the court may, by its judgment, direct a sale of the incumbered property, or so much thereof as may be necessary, and the application of the proceeds of the sale to the payment of the costs of the court, and the expenses of the sale, and the amount due to the plaintiff; and sales of real estate, under judgments of foreclosure of mortgages and liens, are subject to redemption as in case of sales under execution, and if it appear from the return of the officer making the sale that the proceeds are insufficient, and a balance still remains due, judgment can then be docketed for such balance against the defendant or defendants personally liable for the debt, and it becomes a lien on the real estate of such judgment debtor, as in other cases, on which execution may be issued."

Affirmed.

Messrs King and Houtz, for the appellant.

Mr. E. E. Corfman, for the respondent.

MINER, J. ZANE, C. J., and ANDERSON, J., concurred.

OPINION

MINER, J.

It is alleged in the complaint in this cause that on the 21st day of June, 1888, the appellant, Charles H. Miller, made and delivered to the plaintiff his promissory note for the sum of $ 200 and interest, which note he secured by mortgage on real estate, and that the same was due and unpaid on the 26th day of June, 1890, at which time this action was brought to foreclose the mortgage; that on December 31, 1889, the defendant, John M. Drake, purchased the mortgaged premises from Miller, paying him the purchase price in full, and receiving from Miller and wife a full covenant warranty deed therefor; that Drake died before the commencement of this action, and M. M. Kellogg, the defendant, was appointed administrator of his estate. Plaintiff also asks in his complaint a personal judgment against defendant Miller, who is claimed to be personally liable for the debt in question, and that a general execution issue against him to satisfy said judgment and costs; and that on the return of such execution if it shall appear that such personal judgment cannot be satisfied, then said mortgage be foreclosed, and said mortgaged premises be sold, and the proceeds be applied to the satisfaction of the personal judgment, and payment of any deficiency remaining unpaid on such personal judgment.

After the return of such general execution against Miller, the default of all the defendants was duly entered, after which a judgment against Miller and a decree of foreclosure were entered substantially in accordance with the prayer of the complaint. The findings of fact support the allegations in the complaint. The defendant Miller appeals, and alleges as error: (1) A personal judgment is rendered against him for $ 238.40 when the debt is secured by a mortgage, and without a judgment of foreclosure and sale of the mortgaged premises first had. (2) An execution is adjudged against defendant Miller to satisfy the judgment. (3) That the mortgage is adjudged and ordered foreclosed, and the premises sold, only in the event that the judgment remains unsatisfied, in whole or in part, on the return of the execution against Miller. (4) That the judgment of foreclosure and sale is uncertain, and depends upon the contingency of there being a deficiency remaining unpaid on the return of the execution against Miller. (5) The judgment requires sale of all the property of Miller liable to execution before the mortgaged property can be sold to pay the debt remaining to be paid, which is contrary to law.

It is contended by counsel for the appellant that, under the provisions of section 3460 of the Compiled Laws of 1888 there is but one action for the recovery of any debt, or the enforcement of any right secured by mortgage or lien upon real or personal property, which action must be in accordance with the provisions of that chapter; and that, if any personal judgment is rendered it must be accompanied with an order of sale of the mortgaged premises; and that a judgment so rendered is, and must...