Atkinson v. Felder , 78 Miss. 83 ( 1900 )

Terral, J.,

delivered the opinion of the court.

This case was submitted to the decision of the chancery court at the December term, 1897, and it was taken under advisement by the chancellor. At the May term, 1898, of said court the chancellor rendered his decision, but at that term the appellants asked that the case be remanded to the docket for the taking of other evidence. The court overruled the motion to remand, and we think properly so ruled. Wood v. Mann, 2 Sum., 316. We are, however, of the opinion that the complainant should have had a decree for the recovery of his debt against DeWitt C. Felder. ' It is a principle relating to the concurrent jurisdiction of courts, that when there is a distinct equitable feature belonging to the case, and the chancery court has taken jurisdiction of the case in consequence of such equitable feature or incident, that it will adjudicate all the rights of the parties touching the subject-matter of litigation.

The right to recover the money on the notes sued on is a purely legal right, but the foreclosure of the mortgage, which is an incident to the recovery on the notes, is strictly an equitable right, which a court of law does not regard, and the mortgagee having properly brought his suit in equity for the recovery of the debt and the foreclosure of the mortgage, because the procedure at law is inadequate to that end, is entitled to complete relief in that court. And the fact that the equitable feature of the suit is not available, because of some defense arising thereto, does not preclude the court from giving a recovery for the money claimed, though that, as it turns out, is based upon a purely legal right. The court having lawfully taken jurisdiction, is entitled to proceed and adjust whatever rights may exist between the parties, of whatever kind and though strictly legal. This principle of the chancery court governs it in many cases analogous to foreclosure suits, and the inclination of courts is to have all the rights of parties relating to a single subject adjusted in one suit, and ¿specially so since § 592, code 1892, authorizes the court to render a personal decree against the mortgagor for the balance due after a sale of the mortgaged estate has been made and the proceeds applied in payment of the debt; this statute confers a jurisdiction, if none existed before its passage. This consideration is reinforced by section 117 of the constitution, which validates judgments and decrees of courts when rendered in mistake or error of jurisdiction.

The decree is affirmed as to Mrs. Felder, and it is reversed as to De Witt O. Felder, and the case is remanded for further proceedings.