Thornton v. Pigg

24 Mo. 249

• Court: Supreme Court of Missouri
• Decided: January 15, 1857
• Status: Published

Opinion

Scott, Judge,

delivered the opinion of the court.

It is an irregular practice to move in arrest of judgment for defects in a petition, after a demurrer to the petition has been overruled.

We can see no weight whatever in the objections made against the regularity of this proceeding. It has always been the law that the mortgagee has three remedies against the mortgagor. He may file his bill to foreclose, bring an action at law for the recovery of the mortgage debt, and, after forfeiture, an action of ejectment for the recovery of the possession of the mortgaged premises. These remedies are concurrent. (Hilliard on Mort. ch. 31.) Moreover, it is the law of this state that if a mortgagee, as was done here, brings an action at law to recover the mortgage debt, and sells the mortgaged premises under execution and becomes the purchaser, he is just where he began, and will hold the mortgaged land subject to redemption. It is no ground for staying the proceedings under the statute for the sale of the mortgaged premises that there has been a judgment at law for the mortgage debt. Such an idea has no support in any. book that we have read. If the debtor will not pay the judgment, and no property can be found to satisfy it, why should he be restrained from a foreclosure ? Why should the creditor be embarrassed with the difficulties attending a sale of the mortgaged premises under a judgment at law for the débt secured by a mortgage ?

The 4th section of the BOth article of the practice act of 1849 prescribes, that all rights of action given or secured by existing laws, may be prosecuted in the manner provided by that act. The 8d section of the 17th article of the same act enacts that the relief granted to the plaintiff, if there be no answer, can not be other or greater than that which he shall have demanded in his petition as originally filed and served on the defendant; but in any other case, the court may grant him any relief consistent with the case made by the complainant and embraced within the issue. Under these provisions, we do not see why any objection should be taken to the want of a prayer in the petition for the rendition of a judgment for the debt. The proceeding was a statutory one, and the court was clearly empowered to grant such relief as was consistent with the case made.

’ There is nothing in the objection that the administrator could not assign the judgment. From any thing that appears, the plaintiff may be one of those to whom an administrator may by law assign the bonds and notes of the estate.

The wife is not a necessary party to a proceeding under the statute to foreclose a mortgage, although she may have joined in the mortgage deed with her husband in conveying away the premises mortgaged. (Reddick v. Walsh, 15 Mo. 538.) The other judges concurring, the judgment will be affirmed.