Triplett v. Sayre

Judge Ewing

delivered the Opinion of the Court.

Sayre filed his bill against Triplett and others, to foreclose-a mortgage executed by Triplett to him, to secure the payment of anote- for one thousand and forty six dollars seventy eight cents-, executed the 11th of April, 1833, payable one hundred-and twenty days after date.

The bill charges that a mortgage was given to secure the payment of said sum, bearing even date therewith, on a tract of land in Montgomery county, on the waters of Hinkston’s creek, containing eight acres, and also, on a tract of about seven acres in said- county, and on the same waters.

Triplett answered the- bill, acknowledging the mortgage, and his willingness that the- same may be foreclosed and the property sold.

Neither the mortgage, nor note, was made an exhibit-in the bill, nor are they exhibited in this record..

The Circuit Court, without fixing by the decree the-amount due, decreed a foreclosure, and that a eertain designated boundary of land be sold, &c.

From this decree Triplett has brought the case to this-Court.

It was certainly irregular for the Court not to- ascertain and fix the amount due.

But if the. answer of Triplett be regarded as an acknowledgment of the amount charged to be due upon the note, and an assent to the sale of the property mortgaged, it cannot be regarded as an assent, that any land which the Court may designate, may be sold. And in the absence of the mortgage deed, there is no evidence in the record, that the land described in the decree, and ordered to. be sold, is the land embraced in the mortgage.. It may be the same; but enough should appear in the record to show that it is the same.

It is, therefore, the opinion of this Court, that the decree of the Circuit Court be reversed, and the cause remanded, for further proceedings not inconsistent with this opinion.