MEASURE OF DAMAGES - Continued.
ON BREACH OF COVENANTS IN DEED.
From what time interest should be computed, when grantee has surrendered to prior
incumbrancer, who has foreclosed and obtained master's deed. See
INTEREST.
MECHANICS' LIEN.
DIVISIBILITY OF PROPERTY UNDER THE SALE.
1. It is improper in a decree for the sale of property to satisfy a mechan-
ics' lien, to direct a sale of the building without the ground upon which it
stands. N. Pres. Church of Chicago v. Jevne et al. 213.
2. The 14th section of the act relating to mechanics' liens, only authorizes
the division of property which is to be sold, when it can be done without
injury. Ibid. 213.
3. And a division can be made under such circumstances only when the
part which is separated will be sufficient to pay all the claims, but not for the
purpose of paying a portion only of the debts. Ibid. 213.
ALL LIENS MUST BE ADJUSTED. All the parties who have liens upon the property
being before the court, and the sums due them, respectively, ascertained, they
will be directed to be paid and the property ordered to be sold. And this
will apply even to those prior or subsequent liens by which debts not then due
are secured; but in ascertaining the proper amount to be paid upon such
debts, there will be a rebate of interest from the date of the judgment to the
maturity of the debt. Ibid. 213.
OF THE RULE OF ADJUSTING THE VARIOUS LIENS.
5. The rule for adjusting the different rights of parties holding separate
liens upon property which is sought to be subjected to the payment of a
mechanic's lien, is this: Neither prior nor subsequent incumbrances can
operate upon the building erected or the materials furnished, to the prejudice
of the persons performing the labor or furnishing the materials; a prior incum-
brancer shall be preferred to the extent of the value of the land at the time
of making the contract for the erection of the building, and he, also, has a
sabsequent lien on the building, subject to the first lien of the mechanic, and
the mechanic in like manner has a prior lien on the building, and a subsequent
lien on the land. Each may have his debt satisfied out of the fund upon
which he has a first lien, and if that should be insufficient, then the residue
out of any surplus of the other fund which might remain after satisfying the
prior lien thereon. Ibid. 213.
OF THE MODE OF ADJUSTMENT OF THE DIFFERENT LIENS.
6. Practice. In order to know what proportion of the proceeds of the
sale of the premises should be paid to the prior incumbrancer, and upon
the mechanic's claim respectively, the court should, by a jury or a master,
ascertain the separate value of the land and of the building, and direct the
distribution of the proceeds according to the respective rights of the parties as
fixed by the foregoing rule. Ibid. 213.
OF PRIOR LIEN FOR PURCHASE-MONEY, ON RESCISSION OF CONTRACT.
As against a subsequent purchaser. A party having purchased lands, most
of the purchase-money payable at a subsequent day, mortgaged the premises
to a third person. After this mortgage was recorded, the mortgagor and his
vendor rescinded their contract, the latter selling and conveying the lands to
another person, Held, that the rescission of the contract of sale did not affect
the rights of the mortgagee in any way, nor did the prior lien held by the
original vendor upon the premises for the purchase-money become merged in
the contract of rescission, so as to give the vendee's mortgagee a first lien,
even as against the subsequent purchaser. Alden v. Garver, 32.
OF SUING A PARTY BY A WRONG NAME.
1. Of the effect given to a judgment in such case.
out, and judgment entered by default, against a party by his christian name
alone, or by a name which he does not bear at all, and by which he has never
been known, the summons, however, being served on the party intended to be
sued, it is held, the party may be lawfully arrested and imprisoned under a
writ of capias ad satisfaciendum, sued out upon such judgment, though run-
ning also in the wrong name; and a Circuit Court has no power, on habeas
corpus, to discharge the party from imprisonment, upon the mere ground that
he was not sued by his right name. Hammond v. The People, &c. 446.
2. It is matter in abatement.
alone, it is his duty to appear and
Where a party is sued by his christian name
plead the misnomer in abatement, and give
his name in full. Per BREESE, J. Ibid. 446.
3. May be waived. Matter in abatement, if there be notice to the defendant,
in fact, is waived if not pleaded, and cannot be assigned for error.
J. Ibid. 446.
Misnomer-former recovery. A judgment rendered against a party by
his christian name alone, may be pleaded in bar of another suit for the same
cause against him in his full name. Per BREESE, J. Ibid. 446.
5. Remedy by appeal. But if it be an error in a justice of the peace to
render a judgment against a party by his christian name alone, the remedy to
correct it is by appeal. Per BREESE, J. Ibid. 446.
WHO TO BE AFFECTED THEREBY. See BANKERS, 2.
MONEY DEMAND.
WHAT CONSTITUTES.
A party who had given an assignment of his personal property for the ben-
efit of his creditors, desiring to retain it for a time, procured a third person to
execute to the assignee a paper in which he acknowledged the receipt of the
property from the assignee, and agreed to deliver the same to him by a given
day, or in default thereof, to pay him a certain sum of money. Held, the
party executing the instrument failing to deliver the property at the time
stipulated, by the non-performance, the demand became a money demand. It
MONEY DEMAND. WHAT CONSTITUTES.
became, by its terms, a note for the payment of money. Leverenz v. Haines,
MONEY PAID.
WHEN ACTION LIES THEREFOR
A person who pays the indebtedness of another at his request, may main-
tain an action against him for money paid. Allen v. Breusing, 505.
WHAT CONSTITUTES A MORTGAGE.
1. In equity, the form of the transaction, in determining whether it is a
mortgage, is not regarded, but the substance must control. Preschbaker v.
Feaman et al. 475.
2. The intention of the parties, to be gathered in the light of surrounding
circumstances, must give character to the contract in that regard. Ibid. 475.
3. It is not necessary, in order to constitute a transaction a mortgage, that
it should be so expressed in the conveyance; but it may appear by a separate
instrument. Ibid. 475.
4. Nor is it required that the deed and the defeasance should, in terms,
refer to each other. Their connection may be shown by parol. Ibid. 475.
5. The defeasance need not even be in writing. The conveyance may be
absolute on its face, and yet be shown by parol to have been intended merely
as a security for the payment of money, when it will be treated as a mortgage.
Ibid. 475.
6. So, in this case, a party in embarrassed circumstances, conveyed land,
by a deed absolute upon its face, to one who advanced him the money to
relieve his necessities; at the same time the grantee executed a bond for a
reconveyance of the premises, if within two years the grantor should pay the
sum of $3,000, which was the amount advanced to him, without interest; the
grantee not to be liable for rents. Upon bill to redeem, this transaction was
held to be a mortgage to secure a loan of money. Ibid. 475.
ONCE A MORTGAGE ALWAYS A MORTGAGE.
7. Of the right of redemption. It was not essential to the right of the
mortgagor to redeem, that he should do so within the time limited in the
defeasance. There is no rule of law which requires that a redemption shall
be made within the time limited by the mortgage. Until foreclosed, it is a
subsisting right, unless barred by the lapse of time. Ibid. 475.
OF FORECLOSURE, WHEN PART of debt not due.
8. Where a mortgage was given to secure several notes made payable at
different times, with authority to make sale of the premises upon the non-pay-
ment, at maturity, of any of the notes, for the satisfaction of such of them as
should then be due, if the mortgagee resorts to equity to foreclose, he can only
obtain foreclosure for such of the notes as shall have become due, as that is
the limit of the power of sale in the mortgage. Smith v. Smith, 198.
9. And where the decree of foreclosure, in such case, found the amount
actually due, and directed a sale of the premises in the event that amount
should not be paid by a given day, and that out of the proceeds of the sale
MORTGAGE. OF FORECLOSURE, WHEN PART OF DEBT NOT DUE. Continued.
those notes not yet due as well as those over due should be paid, the decree
was held erroneous as being equivalent to a foreclosure for the notes not due.
Smith v. Smith, 198.
10. And a foreclosure in such case for the part of the debt which was due,
would, of necessity, be a release of the security for the amount not due. Ibid.
198.
11. Or, if the mortgagee elect to sell under the power, for the amount
then due according to the terms of the mortgage, it would operate to release
the security for the amount not due. Ibid. 198.
PRIOR AND JUNIOR INCUMBRANCERS.
12. Their rights as between themselves. The holder of a mortgage upon
land, which contained a power of sale, filed his bill in chancery to foreclose,
making a junior mortgagee party defendant. Pending the suit, the prior
mortgagee sold the premises under the power of sale contained in his mort-
gage, a third person becoming the purchaser. The junior mortgagee answered
the bill and filed his cross-bill, making the purchaser under the prior mortgage a
defendant, and praying that the sale to him be set aside; that he be allowed
to redeem, and that the prior mortgage be assigned to him upon his paying the
amount due thereon. Held, that the junior mortgagee was entitled to the
relief sought. Hurd et al. v. Case, 45.
SALE UNDER POWER CONTAINED IN MORTGAGE.
13. Set aside for unfairness. A sale under a power contained in a mort-
gage will be set aside for any appearance of unfairness. As where the
mortgagee, having such a power, filed his bill to foreclose, making a junior
mortgagee party defendant. Pending the suit, the prior mortgagee sold the
premises under the power of sale contained in the mortgage, a third person
becoming the purchaser. This sale was set aside at the instance of the junior
mortgagee, upon cross-bill, on the ground that the resort to equity by the first
mortgagee to foreclose his mortgage, had a tendency to lull the defendant into
a false security in regard to any other mode of sale under the prior mortgage.
Ibid. 45.
WHEN MORTGAGEE CANNOT BECOME A PURCHASER.
14. Sale under power in mortgage. A mortgagee to whom a power of sale
is given in the mortgage cannot become a purchaser at a sale made by virtue
of such power. Mapps v. Sharpe & Co. 13. ✓
15. Upon assignment of the note. And where the note to secure which the
mortgage was given, is transferred by the payee to a firm of which he had
become a member, all the members of the firm are equally prohibited from
purchasing at a sale made by virtue of the power given in the mortgage.
Ibid. 13.
16. After condition broken. It has been said that the mortgagee, after con-
dition broken, may consider the mortgagor in possession, as his tenant for
some purposes. If he elects to consider him as his tenant, it is as a tenant at
sufferance, and he is not entitled to notice to quit. Jackson v. Warren, 331.
MORTGAGE - Continued.
PURCHASER OF MORTGAGOR IN POSSESSION.
17. Holds the same relation to the mortgagee. So a purchaser from the
mortgagor, after a degree and sale, who enters into possession, must be in the
same, and can be in no better condition; he must hold in the same capacity
as his vendor held, to whose rights he succeeded. Jackson v. Warren, 331.
BILL TO REDEEM.
18. All advances should be allowed. Upon bill filed by a mortgagor to
redeem from the mortgagee, all advances made by the latter to the former
should be allowed, whether embraced in a written contract which existed
between the parties, or not. Brown v. Gaffney et al. 251.
Right of subsequent purchaser from mortgagor. See VENDOR AND PUR-
CHASER, 7, 8.
His rights as against one who purchased from the mortgagor subsequent to the
mortgage but prior to the foreclosure. See VENDOR AND PUR-
CHASER, 7, 8.
PRIOR MORTGAGE AND SUBSEQUENT PURCHASER.
By what means the lien may be discharged. See LIEN, 6.
ASSIGNMENT OF THE DEBT CARRIES THE MORTGAGE. See ASSIGNMENT —
ASSIGNOR-ASSIGNEE, 15.
MOTION.
WHAT CONSTITUTES.
1. An affidavit is not a motion. An affidavit setting forth the facts upon
which a continuance of a cause should be allowed, does not, of itself, consti-
tute a motion for that purpose. The affidavit is only evidence of facts sought
to be established in support of a motion. Morrell v. The People, 499.
WHEN THE PROPER REMEDY.
2. To vacate judgment by confession. An objection that a judgment was
confessed under a warrant of attorney upon a note payable on demand, without
any demand having previously been made, comes too late on error. It should
be made when the judgment is entered, or as soon thereafter as counsel can be
heard, on a motion to vacate the judgment for that cause. Hall v. Jones, 38.
To quash defective complaint in forcible detainer. See FORCIBLE ENTRY
AND DETAINER, 1.
OBSTRUCTION OF, BY BRIDGES. See TOWNS AND CITIES, 2.
NEGLIGENCE.
WHAT CONSTITUTES.
1. In navigation of a canal boat. Where an injury is done to a bridge, by
being struck by a canal boat, the master of the boat would be guilty of negli-
gence, if it appeared he undertook to navigate the boat when the rudder
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