Ames v. Ames , 5 Wis. 169 ( 1856 )

By the Court,

Cole, J.

The bill in this case, was filed to foreclose a mortgage given by Ira L. Ames arid wife, to Natha* niel Ames, to secure tbe payment of a note for $184.94 on or before tbe 3d day of March, 1856, witb lawful interest annually. The mortgage and note were duly assigned to tbe complainant. At tbe time of filing tbe bill tbe principal sum was not due. The bill prayed that tbe usual decree might be made for the sale of tbe mortgaged premises, and for tbe payment of the amount due complainant for principal and interest upon tbe note -and mortgage and costs, &c., and also for general relief. Tbe Circuit Court adjudged and decreed that tbe sum of $60.63 interest was due upon tbe note and mortgage, and directed a sale of so much of tbe mortgaged premises as should be sufficient to pay that sum and costs.

It is objected that tbe relief granted was inconsistent with that prayed for in tbe bill. As has been stated, the bill prayed for a sale of mortgaged premises, and for tbe payment of tbe amount due tbe complainant, principal and interest, and for general relief. Upon tbe bearing, it appeared that no principal was due; that tbe relief prayed for, extended to and embraced more, than tbe complainant showed himself entitled to. Could not the court give tbe complainant less than be asked for ? Suppose at tbe bearing it bad been found, that the principal of tbe note was due, but that tbe interest bad been paid, can it be contended that a decree could not be made under this bill for tbe amount due ? It would undoubtedly have been competent for tbe court to grant this relief, under tbe prayer for general relief, as it was agreeable to tbe case presented by tbe bill, and was not inconsistent with the specific relief prayed.

Still another objection has been taken to this decree. It is insisted that it is not in conformity to chap. 84, R. S. Tbe proper practice in tbe present case under this statute, was for tbe Circuit Court to have adjudged and decreed tbe amount actually due tbe complainant upon tbe note and mortgage set forth in tbe bill; and also'to have adjudged tbe amount secured by and unpaid upon said note and mortgage at tbe date of the decree; and to have entered a decree of foreclosure and sale for so much of tbe mortgaged premises as would be sufficient to raise tbe amount actually due, interest and costs, which could be sola separately without material injury to the parties interested ; and a further decree of sale to be enforced by a subsequent order of the court, upon a default in the payment of any portion or installment of the principal or of any interest thereafter to become due. Rev. Stat. § 87. If there should be any default by the mortgagor subsequent to the decree, the court could upon application of the complainant, by a further order founded upon such decree, direct a sale of so much of the mortgaged premises under the decree, as would be sufficient to satisfy the amount due. Sec. 87-88. The complainant has not thought proper to take such a decree, but only one for the amount actually due at the time it was taken. He was entitled to a more favorable one, but- as he does not complain of the one rendered, the appellant-ought not to.object because the court did not grant one more advantageous to his adversary. If the appellee makes no application for a modification of this decree, it must be affirmed, with costs.

The other points raised in this case have already been sufficiently copsidered in the previous case.