John J. Camp Et Ux. v. Small

• Court: Illinois Supreme Court
• Writing for the Court: BREESE
• Citation: John J. Camp Et Ux. v. Small, 44 Ill. 37, 1867 WL 5089 (Ill. 1867)
• Decision Date: 30 April 1867
• Parties: JOHN J. CAMP et ux.v.DARIUS SMALL, use of ISAAC SMALL.

44 Ill. 37

1867 WL 5089 (Ill.)

JOHN J. CAMP et ux.

v.DARIUS SMALL, use of ISAAC SMALL.

Supreme Court of Illinois.

April Term, 1867.

WRIT OF ERROR to the Circuit Court of Will county; the Hon. JESSE O. NORTON, Judge, presiding.

The case is sufficiently stated in the opinion of the court.

Messrs. MCALLISTER, JEWETT & JACKSON, for plaintiffs in error.

Mr. G. D. A. PARKS, for defendant in error.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was a proceeding in the Circuit Court of Will county by Darius Small, for the use of Isaac Small, against John T. Camp, and Elizabeth, his wife, to foreclose a mortgage by scire facias. The writ was duly executed, and issues made up on the pleas of non est factum and usury, and tried by a jury, and a verdict for plaintiff. To reverse this judgment, the defendants bring the case here by writ of error, and assign several errors: First, that the writ is defective, and did not authorize a judgment upon it; second, that the record shows, that before the institution of the suit, Darius Small had transferred and assigned the note and mortgage to Isaac Small, thereby parting with all his interest therein, and therefore was not entitled under the statute to the writ of scire facias to foreclose the mortgage; third, that it was error to render judgment against Elizabeth Camp; and fourth, that the amount of the judgment greatly exceeds the principal and interest of the note.

On this last point it is sufficient to say, there is no evidence preserved in the record except the note and mortgage, on which the verdict was found. The note bore interest at ten per cent, and was payable with exchange on New York. To what that may have amounted, we have no means of knowing, as the evidence is not preserved. In its absence, we must presume proof was made of the amount due for exchange.

On the point that judgment was entered against Elizabeth Camp, this court said, in Gilbert and Wife v. Maggord, 1 Scam. 471, on a similar objection being made, that we perceive no good reason why she, having signed the mortgage, should not have been made a defendant in the proceeding. On the contrary, there appears to be irresistible reasons why she should be joined and made a co-defendant, as she was one of the mortgagors, and it was necessary, to foreclose her equity of redemption and right of dower, that a judgment should pass against her. The judgment is not in personam, but in rem, and is only for the sale of the mortgaged premises to satisfy the debt, damages and costs of suit. To the same effect is the case of Wright v. Langley, 36 Ill. 381. In that case, which was in equity, a decree was taken, ordering and adjudging that the defendants, of whom the wife of mortgagor was one, pay to, and for the use of complainant, the sum found to be due on the mortgage to the master in chancery. It was held, it was...