Sprague v. Hards

McAllister, J.

We have examined this record so far as to convince us that two important questions are involved. The first is, whether in view of the provisions of sections 25 and 9 of the statute, the court below was warranted in rendering a personal decree against Sprague and awarding an execution thereon, there having been no sale ordered, and a deficiency ascertained as prescribed in said section 25. It was claimed by defendants in error that inasmuch as the court found no interest in Sprague, at the time of the decree, a sale would have been a mere useless act, and the law would not require it; that the general principles of equity would apply. It has occurred to us that section 9 makes those principles applicable, “ except as is otherwise provided in this act.'5 What effect that exception has we are not prepared to say, and counsel have made no suggestion in regard to it. The second question is, whether in view of the provisions of section 17, the pendency of the foreclosure suit would cut off petitioners from the benefit of that section as respected the building.

We find that we can not properly determine the questions without having the said insurance company and Jacob L. Greene brought in by service. The cause must be heard as to all the parties to the writ of error. State Bank v. Wilson, 3 Gilm. 89; Carey v. Giles, 10 Geo. 1; 2 Tidd’s Pr. 1134. The submission will therefore be set aside, and the cause continued for the purpose of bringing in the necessary parties.