DeGive v. Lewis

McCay, Judge.

Under the facts of this case, as they appear in the record, even as the plaintiff in error claims them, we think there was no error in the ruling of the court. The statutory proceeding to foreclose a mortgage upon real estate depends for its basis on the lien of the mortgage on the realty involved. It is this which gives the court jurisdiction, and no personal service is required upon the mortgagor by an officer. Service may be by publication, and the proceeding may be instituted and progress, to its final execution, though the mortgagor live out of the state. The locus of the land gives jurisdiction, and the only judgment the court can pass is that the land shall be sold to satisfy the debt. No other property can be levied on : Code, section 3962.

When the bargain was made and acted on, under which DeGive became the owner of the land, his claim was transferred from the land to the fund in his hands, and in our judgment the amount due on the mortgage was necessarily to be decided by the tribunal, to which the execution selling the land was returnable, and decided under such rules, and between such parties, as is usual in cases of the distribution of a fund raised under an execution. By the very terms of the bargain it was left unsettled what was the amount due on the mortgage, and the issue upon that question was to be an issue in which not only DeGive and Lewis, but the judgment creditors of Lewis had an interest, and were to be parties. Under the agreement, DeGive was to hold the money in his own hands, subject to the issue agreed upon.

We are of the opinion that the existence and the lien of the mortgage in that issue are to depend on the status of the mortgage at the time of the sale. In other words, whatever was then legally due on the mortgage was to be a charge on the fund, so far as Lewis was concerned; and as to the other creditors, their rights depend upon whether, at that time, their lien was superior to the mortgage. This, we think, was the necessary result, if the bargain was as the plaintiff contends, As, however, it may be that the facts may not be found, as he contends, we think he ought not to be hurt by the dismissal of his present proceeding, and we shall direct that nothing in the judgment of dismissal shall prejudice DeGive in the issues arising in the distribution of the fund. He stands there with such rights as he had at the time of the sale.

Judgment affirmed.