Thornton v. Pigg

• Decision Date: 31 January 1857
• Citation: Thornton v. Pigg, 24 Mo. 249 (Mo. 1857)
• Parties: THORNTON, Respondent, v. PIGG, Appellant.
• Court: Missouri Supreme Court

24 Mo. 249

THORNTON, Respondent,

v.PIGG, Appellant.

Supreme Court of Missouri.

January Term, 1857.

1. Although a judgment at law may have been obtained by a mortgagee for the mortgage debt, he may also institute proceedings for a foreclosure of the mortgage and a sale of the mortgaged premises.

2. If a mortgagee obtain a judgment for his debt, and at an execution sale thereunder should become a purchaser of the mortgaged premises, he will hold them subject to redemption.

3. Although a wife should join with her husband in the execution of a mortgage, she is not a necessary party to a proceeding under the statute to oreclose the mortgage.

Appeal from Henry Circuit Court.

The petition alleged the execution of a mortgage of certain premises by the defendant, Pigg, and wife, to secure a promissory note executed by said Pigg and others to one Brehm; that Brehm dying, his administrator obtained a judgment on said note against Pigg and the other makers thereof, for $1,646; that said administrator assigned said judgment to the plaintiff in the present action; that Pigg paid upon said judgment the sum of $848.90, for which he is entitled to a credit; that the remainder of said judgment remains unpaid; that said administrator assigned the mortgage to plaintiff; that “by virtue of the premises, he is the owner of the said judgment, and of the said mortgage deed; and is as such entitled to all the rights and privileges secured by said judgment and said mortgage; and he prays that the equity of redemption in the said real estate above described may be foreclosed, and that the said real estate so mortgaged as aforesaid may be sold to satisfy the said balance of the said judgment so due to the said plaintiff from the said defendant, John A. Pigg, as aforesaid.”

A demurrer to this petition was overruled, and the court gave judgment for the balance remaining due upon the mortgage debt; decreed a foreclosure of the mortgage, and ordered a sale of the mortgaged premises; and if the mortgaged premises should not be sufficient to satisfy the debt, then that the residue be levied of other goods, etc.

A motion in arrest of judgment, made by defendant, was overruled.

F. P. Wright, for appellant.

I. The court erred in overruling the demurrer. The petition s not sufficient under our statute for the foreclosure of

mortgages. It does not ask judgment for the debt, nor does plaintiff, as assignee, sue for the recovery of the debt.

II. Defendant's wife should have been made a party. (4 Kent's Com. 198.)

III. There having been a judgment on the note, the remedy on such judgment should have been exhausted before instituting other proceedings at law or equity.

IV. The administrator had no right to assign the judgment and mortgage without an order of the county court.

Napton, for respondent.

SCOTT, Judge, delivered the opinion of the court.

It is an irregular practice to move in arrest of judgment for defects in a petition, after a demurrer to the petition has been overruled.

We can see no weight whatever in the objections made against the regularity of this proceeding. It has always been the law that the...