This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
The most usual method of foreclosure in this country is by a suit in equity, or by a civil proceeding under the code in the nature of a suit in equity, to obtain a sale of the land, and payment of the mortgage debt from the proceeds.84 The right to proceed in equity is not affected by the fact that the mortgage instrument gives a power of sale on default, the mortgagee having the option to adopt either remedy.85 And this is the case even though the mortgagee first attempted, but for some reason unsuccessfully, to exercise the power of sale.86
Me. 568, 12 Atl. 628; 2 Jones, Mortgages, c. 29.
81. Stimson's Am. St. Law, Sec. 1925 (A) (3), (C) (2); 2 Jones, Mortgages, Sec. 1306.
82. 1 Brightley, Purd. Dig. Sec. 169, p. 659, et seq.
83. Laws Del. 1893, p. 843; 2 Starr & Curt. Ann. St. III. c. 95 Sec. 18; Gen. St. N. J. p. 2103, Sec.Sec. 4, 5.
84. See 2 Jones, Mortgages, Sec. 1317; Wiltsie, Mortgage Foreclosure, Sec. 3; 1 Stimson's Am. St. Law, Sec. 1925.
85. Eslava v. New York Nat. Building & Loan Ass'n, 121 Ala. 480, 25 So. 1013; Martin v. Ward, 60 Ark. 510, 30 S. W. 1041; Reid v. McMillan, 189 III. 411, 59 N. E. 948; McFadden v. May's Landing & E. H. C. R. Co., 49 N. J. Eq. 176, 22 Atl. 932; McLarty v. Urquhart, 153 N. C. 339, 69 S. E. 245; Dupee v. Rose, 10 Utah, 305, 37 Pac. 567; Herrick's Adm'r v. Teachout, 74 Vt. 196, 52 Atl. 432; Guaranty Trust Safe Deposit Co. v. Green Cove Springs & M.
That the creditor has some ulterior motive, other than obtaining payment of the debt secured, in prosecuting the suit to foreclose, would seem to be no defense thereto.87
Decree for sale. The court should, by its decree, determine the amount of the indebtedness, to satisfy which a sale of the property is to be made.88 It may include an instalment of the debt which was not due at the time of the institution of the suit, but which has since become due,89 provided at least this was asked for in the bill or complaint, or a supplementary pleading was filed for this purpose.90
The court cannot, it is evident, adjudge in its decree the whole debt to be due when a part thereof is
R. Co., 139 U. S. 137, 35 L. Ed. 116.
86. Rogers v. Benton, 39 Minn. 39, 12 Am. St. Rep. 613, 38 N. W. 765; Wolff v. Ward, 104 Mo. 127, 16 S. W. 161; Martin v. McNeely, 101 N. C. 634, 8 S. E. 231; Shepherd v. Pepper, 133 U. S. 626, 33 L. Ed. 706. Aliter where the sale under the power was valid, although the mortgagee was the purchaser. McLean v. Presley, 56 Ala. 211.
87. Davis v. Flagg, 35 N. J. Eq. 491; Trenor v. Le Count, 84 Hun. (N. Y.) 426, 32 N. Y. Supp. 412; Williams v. Brown, 127 N. C 51, 37 S. E. 86.
88. Tompkins v. Wiltberger, 56 III. 385; Travellers Ins. Co. v. Patten, 98 Ind. 209; Wernwag v. Brown, 3 Blackf. (Ind.) 457, 26 Am. Dec. 433; Wilson Sewing yet to become due.91 The effect of such a finding would be to prevent a redemption before sale by payment of what is actually due.92 In case there are instalments of the debt not due at the time of the making of the decree for sale, the court may decree a sale of so much of the property as is necessary to pay the overdue instalments, or of the whole property, subject to the payment of future instalments, or of the whole property, free and clear of the mortgage lien.93 A sale of the whole property is proper when it cannot advantageously be sold in parts,94 and also, it has been held, when the property is insufficient to pay the whole debt, and the person in possession of the property is irresponsible, the theory being that, in such case, a sale to satisfy the instalments due might leave but a small residuum of the property, and the rents and profits thereof might be wasted.95 A sale of the whole property subject to the instalments yet to fall due has been said to be undesirable as tending to depreciate the price which will be bid for the property.96 And it appears, as a matter of fact, that in case of a sale of the whole property, it is ordinarily sold free of the mortgage, and the court retains control of the case for the purpose of applying the surplus proceeds upon the subsequent instalments as they fall due,97 or even before they fall due.98 If a part only is ordered to be sold, the court will ordinarily provide, in its decree, for subsequent sales as other instalments of the debt come due, either with or without application to the court for supplementary orders of sale.99
Mach. Co. v. Rutledge, 60 Iowa, 39, 14 N. W. 92; Vaughn v. Nims. 36 Mich. 297; Rumsey v. People's Ry. Co., 144 Mo. 175, 46 S. W. 144; Collier v. Ervin, 2 Mont. 335; Hoy v. Bramhall, 19 N. J. Eq. 74; Kelly v. Searing, 4 Abb. Pr. (N. Y.) 354; Gore v. Davis, 124 N. C. 234, 32 S. E. 554.
89. Adams v. Essex, 1 Bibb. (Ky.) 149; Clark v. Abbott, 1 Md.
Ch. 474; Vaughn v. Nims, 36 Mich. 297; Clark v. Clark, 62 N. H. 267; Manning v. McClurg, 14 Wis. 350.
90. McLane v. Piaggio, 24 Fla. 71, 3 So. 823; Magruder v. Eggle-ston, 41 Miss. 284; King v. Long-worth, 7 Ohio St. 2, 231; Smith v. Osborne, 33 Mich. 410 (sem-ble); Sherman v. Foster, 158 N. Y. 587, 53 N. E. 504; Cooke v. Pennington, 15 S. C. 185.
91. King v. Longworth, 7 Ohio St. 2, 231.
92. Grape Creek Coal Co. v. Farmers Loan & Trust Co., 63 Fed. 891, 12 C. C. A. 350; Blazey v. Delius, 74 III. 299.
93. Fulgham v. Morris, 75 Ala. 245; Warren v. Harrold, 92 Tex. 417, 49 S. W. 364.
94. McDowell v. Lloyd, 22 Iowa, 448; Peyton v. Ayres, 2 Md. Ch. 67; Parkhurst v. Cory, 11 N. J. Eq. 233; Brinkerhoff v. Thall-heinier, 2 Johns. Ch. (N. Y.) 486;
King v. Longworth, 7 Ohio St. 2, 231; Warren v. Harrold, 92 Tex. 417, 49 S. W. 364; Black v. Reno, 59 Fed. 917.
95. Suffern v. Johnson, 1 Paige (N. Y.) 450, 19 Am. Dec. 440, Compare Bank of Ogdensburgh v. Arnold, 5 Paige's Ch. (N. Y.) 3S.
96. Hards v. Burton, 79 III. 504.
97. Fulgham v. Morris, 75 Ala. 245; Warren v. Harrold, 92 Tex. 417, 49 S. W. 364.
98. See Hards v. Burton, 79 III.