Peter Delabigarre and Margaret and his wife, appellants, against John Bush, respondent, 2 Johns. 490

Thompson, J. The first question presented by the present appeal, is, whether the decree for a sale should have extended to the whole of the mortgaged premises, or oeen limited to such portion as would have been sufficient to satisfy the respondent’s demand. I cannot- assent to the proposition, that, on the foreclosure of a mortgage, jt is matter of course to order a sale of all the mortgaged premises, I see no beneficial purpose to be answered by such a course as it respects the rights of the mortgagee. All that he can with propriety, require, is a full satisfaction of his demand.

It is well known, that, in most cases, the value of the mortgaged premises far exceeds the sum intended to be secured by the mortgage, and if the mortgagor is so unfortunate as to be unable to redeem his land, 1 am at a loss to discover any good reason why he should be compelled to part with the whole, whereby a variety of unnecessary expenses will be added to the loss resulting from á forced sale. There can, perhaps, be no general rule on the subject, each case must depend on its own circumstances. The situation of the mortgaged premises may be such as to render it impracticable to sell in parcels.

That embarrassment, however, does not exist in the case before us. '• The premises are in separate and distinct parcels, and the circumstance that a great portion of the mortgaged property belonged to Mrs. Delabigarre, presents a strong and cogent reason for restricting the sale to a bare sufficiency to satisfy the respondent’s demand; otherwise, tb.e real estate of the wife will be converted into personal property, and be subject to the absolute disposal of the husband.

The assignment of the mortgage to the respondent for the security of a debt due from the mortgagee to him, cannot impose on him the obligation of seeking a sale of the whole premises, against thejjwill-of the mortgagee. I say, against his will, because, such appears to me to be the necessary inference from the whole of the proceedings. If Peter W. Livingston had wished for a settlement of the accounts between Helabigarre and himself,- and for a sale of the premises on his own account, why was he not made a complainant,, instead of a defendant, in the cause ?

If it be admitted, by the appellants, that there was enough due on the mortgage to satisfy the respondent’s claim, I see no propriety in the latter’s forcing a settlement of the concerns between the mortgagor and mortgagee. Although the mortgage purports, upon the face of it to be for securing twenty thousand debars, yet it is not pretended, that that was the real sum due to the mortgagee, but on the contrary, it is admitted, that the purpose for which the mortgage was given, was to secure the balance of an unsettled account.

The real object of the mortgage appears, by an instrument bearing even date with it, given by Livingston to Delabigarre, by which he acknowledges that the bond and mortgage were given to secure the payment of 13,929 dollars, due upon settlement of accounts on that day, and as a further security for the payment of a debt, for which Peter TV. Livingston may have become responsible to John 11. Livingston, for Delabigarre, for stock of the United States; and upon the contingency of P. W. Livingston's paying John R. Livingston for-the stock, he is to charge Delabigarre the further sum of 1,648 dollars.

This instrument concludes with declaring, that upon payment of the above sums of money, with the interest to P- fV. Livingston, in the time mentioned in the bond and mortgage, and all other demands which he may have against Delabigarre, the bond and mortgage are to be legally cancelled. The extent of the demands of P. W. Livingston against Delabigarre, exclusive of the 13,929 dollars, is altogether unascertained.

The appellants, in their answer, deny that the stock ever was delivered to them, or applied to their use, and no proof was given on that subject, except the instrument above referred to-; by which, I think, it clearly appears, that, with respect to the stock purchased from J. R. Livingston, P. W. Livingston can only be considered as surety for Delabigarre, admitting the latter to have received it. But there is no legal evidence that P. W. Livingston has paid for this stock, or been, in any way, injured in consequence of his suretyship. The account between Delabigarre and Livingston never has been settled.

The reference to the master was general? to report the sum due on the bond. and mortgage, for principal and interest. The report of the master, on this part of the reference, was simply a calculation of interest upon the nominal sum contained in the bond. But as this was not the real consideration for which the mortgage was given, it remains yet undetermined, how much was due upon it.

The appellant’s answer, and the instrument above referred to, show at least 13,929 dollars to be due, which is. more than the amount of the respondent’s demand ; no objection, can, therefore, be made to a sale of enough of the mortgaged premises for the satisfaction of this demand, and the costs of suit. It was justly urged by the respondent’s counsel, that courts ought to avoid a multiplication of suits, and not leave to be settled by several suits, what might be accomplished by one.

But a sale of the whole of the mortgaged premises, will not effect this desirable end. ' The rights of the respective claimants to this mortgage are not so far ascertained, as to enable the court to make a final distribution of the money. The decree of the court below does not extend thus far. The surplus money, after paying the respondent’s demand, is directed to be brought into court, tó abide its further order respecting the same.

No litigation is, therefore, prevented by this course; for if the rights of the respective claimants are not so far ascertained, as to enable the court to make a final distribution of the money, further litigation is indispensable.

Considering, therefore, that the real consideration of the mortgage was an ultimate balance of accounts between Ddabigarre and Livingston, and that such balance never has been ascertained, and that Livingston cannot be considered, in this suit, as seeking a settlement of such accounts, or claiming payment of any money to himselfj but, on the contrary, must be viewed as opposing a forer closure, and that a salé of the whole of the mortgaged premises, might materially injure Mrs.

Delagibetrre, without answering any beneficial purpose to the responds ent, I think the decree for a sale should have been limited, so as to embrace only sufficient property to satisfy the respondent’s demand. 2. It has been urged, as another ground of exception against the decree of the court below, that it directs a payment of the principal and interest, reported by the master to be due to the respondent j and that there have been two reports of a master, so that it was left uncertain to which the decree referred. This objection appears not to be well founded in point of fact.

Although there was a report of a master made in May, 1802, yet this report was afterwards vacated, together with all the proceedings connected with it. The final decree could, therefore, have no reference to it, aud the only report recognised as valid, was the one of the 4th of April, 1805. If any well-grounded objection could be made to this report, I should much doubt whether the appellants could avail themselves of it here. The exceptions should have been taken in the court below. We caunot know the evidence the master had before him; nor can it be proper here, to go into calculations made by the master.

If the parties have neglected to except to the report, I should consider it a waiver of ail exceptions. I am, however, unable to discover any mistake. The report consists in a mere calculation of interest upon 7,200 dollars, from the time of the assignment of the mortgage, which was on the 20th of May, ¡797.

Peter W- Livingston, in his answer, admits that he gave the respondent his note for that sum, payable with interest, and that the bond and mortgage were assigned by him to secure the payment of the same.On the second reference, there was no proof or admission of any payments having been made on this note, and no notice ought to have been taken of what passed on the former reference.

The second objection, therefore, to the decree, appears to me not to be well founded* The result of ray opinion is, that the cause be sent back to the court of chancery, to the end that the decree for a sale of the mortgaged premises may be so modified as to embrace only a sufficiency, as nearly as may be, (including such parts thereof as belong to Delabigarre, in his own right) to satisfy the respondent’s demand, with the costs of suit; and also for the purpose of having the accounts between Delabigarre and Livingston settled, and the real balance ascertained : and that further sales, if necessary, be hereafter ordered by the court below, to satisfy such balance, when ascertained, together with the costs.

Kent, Ch. J., declared himself to be of the same Opinion. Tompkins, J., having been formerly concerned as com?? sel in the cause, gave no opinion. . L’Hommedieu, senator. Iam of opinion, that the decree in this cause ought to be reversed. 1. The original' mortgage was given to secure whatever might be due, on a balance of accounts, from the appellants to Peter W. Livingston. As the mortgage was assigned to the respondent without notice, he must take it, subject to an account between the mortgagor and mortgagee.

No such account has been taken, and it is, therefore, uncertain how much, or whether any thing, is due from Delabigarre to Peter W. Livingston. 2. The master’s report of the 4th April, 1805, is the foundation of the decree, and ought to be considered as part of it; and may, therefore, be inquired into by this court.

That report appears to be erroneous, in allowing interest from the 20th March, 1797, to the 20th March, 1800, though the bill acknowledged that the interest for that period had been paid, It appears, also, that 1,000 dollars of principal have been allowed to the respondent, when it is evident from the answer of P. W- Livingston, which is not contradicted, that only 6,200 dollars were advanced. When the report was made on the 20th May, 1802, the respondent admitted, that the 1,000 dollars were not due.

And though that report was, afterwards, set aside, yet it is so far evidence of the admission of the respondent, who ought to be bound by it, in the future adjustments of the account. 3. The decree directs the whole mortgaged premises to be sold, when the respondent, in his bill, prayed for no more than the sum due to him; and P. W. Livingston, the mortgagee, did not wish for any sale to pay what might be due to him.

There was no necessity, therefore, for selling more than was sufficient to pay the respondent ; and it was erroneous in the court of chancery to decree the payment of any further sum, or to order the money to he raised and brought into court; thereby putting an end to the landed security on which the parties were willing the loan should continue.

I am, therefore, of opinion, that no more of the mortgaged premises should be sold than is sufficient to pay the debt due to the respondent, and that the property of the husband be first applied to that purpose; and, in case that should be insufficient, that then so much of the lands belonging to the wife should be sold, as may make up the deficiency; or that, on payment of the principal and interest due to the respondent, the securities should be assigned to that amount to such person as the appellant, Margaret Delabigarre, shall nominate. The rest of the court concurring in the opinion deliyercd by Mr.

Justice Thompson, it was thereupon ORDERED, adjudged, and decreed, that the decree in the .court below, of the 7th April, 1806, be modified, so that such part only of the mortgaged premises as belong to Peter Delabigarre, and if not sufficient, then, together- with so much of the mortgaged premises as belong to Margaret Delabigarre, be sold, as will satisfy the amount of the, demand reported in favour of the respondent, and approved of by the said decree) together with the costs and interest: And that the said court take such further steps as shall be deemed proper, to ascertain the remaining sum due from the said Peter Delahigarre, on the said bond and ° mortgage, and when ascertained, that the residue of the said mortgaged premises, or such part thereof as shall be requisite, be sold to satisfy such balance, together with the costs and expenses chargeable in the court below, and that the proceedings be remitted to the court of chancery.