Weir v. Field

• Decision Date: 10 March 1890
• Citation: 67 Miss. 292,7 So. 355
• Parties: WASHINGTON WEIR, EX'R, v. VIRGINIA H. FIELD, EX'RX
• Court: Mississippi Supreme Court

7 So. 355

67 Miss. 292

WASHINGTON WEIR, EX'R, v. VIRGINIA H. FIELD, EX'RX

Supreme Court of Mississippi

March 10, 1890

FROM the chancery court of Adams county, HON. W. R. TRIGG Chancellor.

The appellant is the executor of L. B. Field, who died in 1884. At the time of his death L. B. Field was indebted to O. K Field in the sum of $ 4000, secured by mortgage on land. In 1885, the latter filed a suit of foreclosure against appellant and the heirs of said L. B. Field, and during the same year a decree of foreclosure was rendered which adjudicated the amount due and condemned the land to the payment thereof.

Default having been made in the payment of the debt, the land was sold by the special commissioner named in the decree, and the report of sale was made at the June term, 1887. The report of the commissioner showed that he had realized from the sale the sum of $ 2349.70, to be credited on the decree. At the same term a decree was rendered confirming the sale, but making no order as to the balance of the debt remaining after sale.

At the June term, 1889, O. K. Field, in the meantime having died the cause was revived in the name of Virginia H. Field, his executrix, and at the same term a personal decree was rendered upon her motion against appellant in his fiduciary capacity, for the balance of the mortgage debt remaining unsatisfied after the sale of the property. The executor of L. B. Field appeared and contested the motion, and now prosecutes this appeal, assigning for error that the power of the chancery court in foreclosure suits to render a personal decree for the balance remaining due after sale of the property is confined to the term at which the sale is confirmed, and that the debt was barred by the limitation at the time the motion was made, and for this reason there could be no personal decree.

Affirmed.

T. Otis Baker, for the appellant.

1. The remedy by decree for a deficiency is purely statutory. Stark v. Mercer, 3 How. 377; Michigan Ins. Co v. Brown, 11 Mich. 265; 2 Jones on Mort. § 1711. Being statutory, the remedy must be strictly pursued and the right confined to the term at which the report of sale is confirmed. Code 1880, § 1935. The complainant cannot lie by indefinitely, allowing interest to accumulate, and then ask and obtain a personal judgment and execution.

2. There can be no personal judgment for a deficiency in case the debt is barred by the statute of limitation. Wiswell v. Baxter, 20 Wis. 680; Michigan Ins. Co. v. Brown, supra; 2 Jones on Mort., § 1715.

3. The judgment for the deficiency cannot be rendered after the death of the mortgagor against his executor. A claim for such deficiency must be presented under the proceedings for the administration of the estate. Otherwise the mortgagee first foreclosing would, in effect, get priority of payment out of the estate, not only as against general creditors, but as against mortgagees later in foreclosing though in the same class of creditors. Pechand v. Rinquet, 21 Cal. 76; Leonard v. Morris, 9 Paige, 90; Newkirk v. Burson, 21 Ind. 129; 2 Jones on Mort., § 1717, and cases cited.

W. P. & J. B. Harris, for appellee.

1. Section 1935 of the code is an enlargement of the power of the court of chancery over the subject-matter of equitable cognizance, the foreclosure of mortgages. The want of power or rather of precedent to pronounce a personal decree in mortgage cases survived in this state longer than in other jurisdictions. In the United States courts a rule of court adopted in 1864 made substantially the same change made by § 1935.

While a proper practice would require that the motion be made with due diligence promptly on the confirmation, there is nothing in the character of the alteration to indicate that the motion must be made at the very term when the sale is confirmed. There is no good reason for any such strict construction of the statute. The jurisdiction continues for all purposes of making the foreclosure proceeding effectual for the complete satisfaction of the debt. Riggs v. Jackson Co., 6 Wall. 166. A circuity of action, and multiplicity of suits should be avoided.

2. The filing of the foreclosure suit stopped the running of the statute of limitations. Code 1880, § 2062. The authorities cited by appellant are cases arising under different states of the law. They apply to those systems where mortgage security on the specific property might survive the debt as a personal charge, in which case the mortgagee was bound to confine himself to the property alone, and the debt might be barred before the filing of the bill. The cases from Wisconsin and Michigan were under special statutes. In the latter state it is provided that the debt is "recoverable at law."

3. The judgment over was properly taken against the executor of the debtor. Our statute does not apply to mortgages only. It uses the words, "mortgages, deeds of trust, or other liens," and the personal decree shall be against the "defendant," which means any party to the cause who represents the personal...