Opinion
01-27-1820
Anderson's Administrator v. Davies's Administrator, Widow, and Heir
Leigh and Stanard for the appellant, and Wickham for the appellees
This was a suit in the Superior Court of Chancery for the Williamsburg District, to foreclose several mortgages on lands and slaves. The Bill, amended Bill, answers and Exhibits, presented much controversy between the parties, concerning the amount of the debt. Several orders of account were made; upon the last of which, a commissioner reported a statement, shewing a balance due the plaintiff of 1271. 5. 9 1/4, with interest thereon, at 5 per centum per annum, from the 13th of January 1804.
Chancellor Nelson, being of opinion that this balance was the only sum due, and that the several mortgages in the Bill mentioned were not for distinct and different debts, but merely additional evidences of, and securities for, one original debt, decreed, that, unless the defendants should, on or before a day specified, pay to the plaintiff the said sum of 1271. 5. 9 1/4, with interest as aforesaid, they should be barred and foreclosed of all equity and right to redeem, & c.; and, in such event, that certain commissioners named in the decree, or any two of them, after giving three weeks previous notice in one of the Norfolk Newspapers, should expose to public sale, by auction, for ready money, the mortgaged premises, or such part thereof as should be sufficient for the purpose, and, out of the proceeds of the sale, pay to the plaintiff his said debts, interest and costs; and the surplus of the said proceeds, if any, after deducting the expenses attendant thereon, pay to the defendant Fortescue Whittle, administrator of Davies.
Note. In one of the Mortgages in question, there was no reference to the other two; so that, upon it's face, it did not appear to have been given for the same debt; but the allegations in the answers, and other circumstances, led to a different conclusion. --Note in Original Edition.
The Commissioners reported, that, pursuant to this Decree, they advertised the property for sale; but, the defendant Whittle having tendered them the money to be raised by such sale, to wit, $ 738 74 Cents, they, with the assent of the plaintiff, received the same, and paid it over to him, as appeared by his Receipt annexed to their Report; to which there was no exception.
The Chancellor confirmed the said Report; and, it appearing thereby, that the plaintiff had received the amount of his debt, interest, and costs, the final decree was that the defendants should pay only the costs incurred by him since the rendition of the said interlocutory decree; whereupon, the plaintiff appealed.
Decree affirmed.
OPINION
Page 486
After argument, by Leigh and Stanard for the appellant, and Wickham for the appellees, JUDGE ROANE pronounced the Court's opinion, as follows.
On the merits, the Court has no hesitation in affirming the Decree. Doubts are entertained, however, whether it was regular, in this case, to direct the proceeds of the sale of the mortgaged land to be paid over to the appellants, before the said sale was confirmed by the Court. This question may be considered hereafter, if it shall occur, before a fuller Court.