Morgan v. Wilkins

Court of Appeals of Kentucky

Morgan v. Wilkins

29 Ky. 28, 6 J.J. Marsh. 28, 1831 Ky. LEXIS 116

DecidedApril 27, 1831

StatusPublished

This text of 29 Ky. 28 (Morgan v. Wilkins) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Morgan v. Wilkins, 29 Ky. 28, 6 J.J. Marsh. 28, 1831 Ky. LEXIS 116 (Ky. Ct. App. 1831).

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Opinion

Chief Justice Robertson

delivered the opinion of the court.

This writ of error, is prosecuted to reverse a decree in personas, rendered against the plaintiffs in error, for the residue of a debt, after deducting the amount for which property, mortgaged tcse-cure the debt, had been sold, under a decree in the same suit, foreclosing the equity of redemption, and subjecting the mortgaged estate to sale.

It does not appear that the mortgagee had a right to any other relief, than a decree in rem. If the* chancellor would, without the mortgage, have had exclusive or concurrent jurisdiction of the demand, H would have been proper to have clo'sed t'he controversy, by sucha decree as that which was rendered; but, if a suit in chancery could not have been maintained to coerce the debt, independently of the mortgage, the power of the chancellor did not. extend beyond a decree of foreclosure and sale.

The legal inference, from the bill and the mortgage* is, that the debt was purely and exclusively legal, over which a court af equity had no jurisdiction, except so far as to enforce the lien: and there is no allegation in the bill, which could give the chancellor jurisdiction to render a personal decree. It would seem, therefore, as the ease is now presented, that the de[29]*29fendant in error ought to have resorted to a legal remedy, for so much of his'debt as remained due after the sale of the mortgaged estate; and that"the circuit court erred, therefore,in decreeing to him the amount so remaining unpaid. In other respects the decree was proper.

. John Bfeathitt, for plaintiffs.

Wherefore, the decree against the plaintiffs in er-tor, personally, is reversed, and the.cause remanded, with instructions to dismiss so'much of the bill, as claims a decree beyond foreclosure and sale, without prejudice to a suit at law, or to any other suit in chan-eery, if such a suit shall be proper.

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Chief Justice Robertson

delivered the opinion of the court.

This writ of error, is prosecuted to reverse a decree in personas, rendered against the plaintiffs in error, for the residue of a debt, after deducting the amount for which property, mortgaged tcse-cure the debt, had been sold, under a decree in the same suit, foreclosing the equity of redemption, and subjecting the mortgaged estate to sale.

It does not appear that the mortgagee had a right to any other relief, than a decree in rem. If the* chancellor would, without the mortgage, have had exclusive or concurrent jurisdiction of the demand, H would have been proper to have clo'sed t'he controversy, by sucha decree as that which was rendered; but, if a suit in chancery could not have been maintained to coerce the debt, independently of the mortgage, the power of the chancellor did not. extend beyond a decree of foreclosure and sale.

The legal inference, from the bill and the mortgage* is, that the debt was purely and exclusively legal, over which a court af equity had no jurisdiction, except so far as to enforce the lien: and there is no allegation in the bill, which could give the chancellor jurisdiction to render a personal decree. It would seem, therefore, as the ease is now presented, that the de[29]*29fendant in error ought to have resorted to a legal remedy, for so much of his'debt as remained due after the sale of the mortgaged estate; and that"the circuit court erred, therefore,in decreeing to him the amount so remaining unpaid. In other respects the decree was proper.

. John Bfeathitt, for plaintiffs.

Wherefore, the decree against the plaintiffs in er-tor, personally, is reversed, and the.cause remanded, with instructions to dismiss so'much of the bill, as claims a decree beyond foreclosure and sale, without prejudice to a suit at law, or to any other suit in chan-eery, if such a suit shall be proper.

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Bluebook (online)

29 Ky. 28, 6 J.J. Marsh. 28, 1831 Ky. LEXIS 116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morgan-v-wilkins-kyctapp-1831.