Jacobs v. Lewis

• Citation: 47 Mo. 344
• Parties: JOHN JACOBS, ADMINISTRATOR OF SOLOMON LEWIS, Plaintiff in Error, v. REUBEN LEWIS, Defendant in Error.
• Decision Date: 28 February 1871
• Court: United States State Supreme Court of Missouri

47 Mo. 344

JOHN JACOBS, ADMINISTRATOR OF SOLOMON LEWIS, Plaintiff in Error,

v.REUBEN LEWIS, Defendant in Error.

Supreme Court of Missouri.

February Term, 1871.

Error to Fifth District Court.

Collier & Turner, for plaintiff in error.

I. The suit in the Circuit Court to recover the first installment of interest due on the note in controversy, and the suit in the Common Pleas Court to recover the second installment of interest due on said note, are based upon separate and distinct causes of action, notwithstanding the said installments of interest were secured by one and the same mortgage. A separate cause of action accrues whenever default is made in the payment of any installment of interest due on said note, and the parties in interest clearly have the right to subject the mortgaged property to sale, or so much thereof as may be necessary to pay such installment, until the whole mortgaged property shall have been sold. (9 Mo. 283; 43 Mo. 517.)

II. It is not denied that where a mortgage is given to secure separate debts, and there has been a foreclosure and judgment for one debt, and the whole mortgaged property sold, there can be no further foreclosure or sale for debts subsequently falling due. (7 Mo. 489.)

III. But it is insisted that even in an equitable proceeding on a mortgage to secure different installments falling due at different times, a decree of foreclosure may be rendered on the installment then due without waiting for all the installments to fall due; and if the property is susceptible of division, the same may be sold from time to time until the whole mortgaged property shall have been exhausted. (7 Ohio, 231; 2 Washb. 222.)

IV. Where the mortgage is made to secure several creditors, each has a separate right of action, and may proceed without joining the others. (9 Mo. 277.)

V. This suit is a proceeding at law under the statute, and is not governed by the doctrines and practice of equity. (43 Mo. 503.)

Broaddus & Pollard, for defendant in error.

Plaintiff can not have more than one judgment for a foreclosure of the same mortgage, and subject the land to sale by judgments from different courts. (Lansing v. Capron et al., 1 Johns. Ch. 617; Bunkerhoof v. Thallhimer, 2 Johns. Ch. 486; Lyman v. Sale, 4 Johns. Ch. 488; Campbell et al. v. Macomb et al., Id. 534; Buford & Henderson v. Smith, 7 Mo. 489.)

CURRIER, Judge, delivered the opinion of the court.

This suit was brought to foreclose a mortgage. The proceeding is under the statute (2 Wagn. Stat., ch. 99). The answer admits the execution of the note and mortgage sued on, and then alleges, as ground of abatement, the pendency of a prior foreclosure suit between the same parties, founded upon the same note and mortgage, but for a different cause of action.

The note in suit was payable in installments of $200 each; that is, $200 was payable annually during the lifetime of the payees, as the interest on $2,000. The first foreclosure suit was based upon the first of these installments, while the present suit is based upon the second,...