Anonymous ( 1823 )

A writ of error was allowed by Judge McLean to remove the record of a final decree, rendered by the court of common pleas in Huron county, on a bill to foreclose an equity of redemption. The principal errors assigned were : 1. That such a bill could not be sustained, because there was an adequate remedy at law, under the act providing for the recovery of money secured by •mortgage. 2. That the court below had directed the mortgaged premises to be sold without valuation.

The cause having been argued by counsel, in Huron county, was taken under advisement, and submitted to the court in Trumbull county, at the term in 1821, all the judges being present.

After mature consideration, the following points were unanimously decided: 1. That the court may sustain bills of this' description, notwithstanding the statute allowing proceedings by scire facias. 2. That in every such case the laws of the state require that the mortgaged premises be appraised, and that they be not sold at less than two-thirds of the appraised value.

For the regulation of the practice in similar cases, the court established the following rule: That no final decree be entered on a bill to foreclose an equity of redemption or to effect a sale of a mortgaged premises, until the court shall have caused an appraisement to be made agreeably to the provision of the act regulating-judgments and executions; and that if, on the return of the appraisement, it shall appear that the premises, at two-thirds of the valuation, do not exceed the sum due on the mortgage, the court may decree a foreclosure; but if the mortgaged premises, estimated at two-thirds of the appraisement, shall exceed the amount due on the mortgage, and a decree be rendered for the complainant, a sale shall be directed on the principles of the act regulating judgments and executions.