Isaac S. Mulford v. Thomas C. Williams and others.
Where a bill for foreclosure sets out incumbrances held by defendants with sufficient particularity and their1 order of priority, and a decree pro. con. is taken, and a reference to a Master, the Master cannot, by issuing a summons to a defendant incumbrancer to appear before him, put such a defendant in a position to lose his rights, admitted by the hill and established by the decree p. c., by failing to attend the Master.
In March, 1849, Isaac S. Mulford exhibited his bill of foreclosure, on a mortgage, dated November IT, 184T, given by Thomas C. Williams.
The hill states, that, on the 2Tth of March, 1848, as the complainant is informed and believes, Joseph Franklin recovered a judgment, in the Common Pleas of the County of Gloucester, against the said Thomas C. Williams, for $632.30 debt, and #4 costs; which judgment remains unsatisfied, and a lien on the premises described in the said mortgage.
That, on the 5th of April, 1848, the said Williams executed another mortgage on the same premises to William S. Doughton, for |300, payable, &c.; which is an incumbrance on the same premises.
And that Charles Edwards recovered a judgment against the said Williams, &c., (stating it.)
The hill prayed process against Williams, Doughton, Edwards and Franklin, and the process was duly served, returnable April 16, 1849.
On the 20th of June, 1849, a decree pro con. was taken against all the defendants, and an order by which, after stating that the whole of the money secured by the complainant’s mortgage was not due, it was referred to a Master to ascertain what was then due on the complainant’s mortgage &c., and, also, the amount due, if anything, to the said Doughton, Edwards and Franklin, on their respective mortgage and judgments, and to *537report the order and priority of the said several mortgages and judgments, &c.
On the 26th of June, 1849, the Master reported, that, after having summoned the parties to appear before him, he found, there was due to the complainant, for interest on his mortgage, f 18; that the principal sum, $300, is not yet due, &c.; that the complainant’s mortgage is first in order and priority. That there was due to Doughton, for interest on his mortgage, $18 ; that the principal sum secured by his mortgage is not yet due, &c.; and that said Doughton’s mortgage is second, in order and priority. That the judgment of Edwards had been fully paid.
That it was satisfactorily proved before him, that the summons issued by him, directed to said Franklin, summoning him to appear before said Master on the date of the report, was duly served on said Franklin; but the said Franklin neglected to appear and prove his claim, if any he has against said mortgaged premises; and that, therefore, he, the Master, cannot report, what, or whether anything remains due to Franklin on his said judgment, or whether it has been entirely satisfied. He further reports that, under the circumstances of the case, the whole of the mortgaged premises should be sold.
On the 5th of July, 1849, the solicitor of the complainant took a final decree, confirming the report, and decreeing the sale of the mortgaged premises, to pay the moneys due and to become due to the complainant and Doughton, respectively; and that a fi, fa. issue &c.; and that all the defendants stand debarred and foreclosed &c.
On the 2?th of December, 1849, Franklin presented his petition, stating the filing of the said bill, and the contents thereof; that his judgment is wholly unpaid, and is the next incumbrance to the complainant’s; that he, before the mortgage to Doughton. was given, caused a fi. fa. against goods and lands to be issued on his judgment on the day of the entry of his judgment; and that the sheriff, the said Williams having no goods, levied his said execution on the mortgaged premises, whereby the petitio»*538er’s judgment became and is a fixed incumbrance, prior to the mortgage of Dougbton. That neither the petitioner nor Dough-ton appeared, pleaded, answered or demurred to the said bill of complaint.
The petition then states the decree pro confesso and order of reference; and that the petitioner is advised, that so much of the said order of reference as directed the Master to ascertain the order and priority of the incumbrances was irregular; because their order and priority were expressly stated in the bill, and fixed by the decree pro confesso thereon; so that the Master could not rightfully change them.
' That the petitioner, relying on the correctness of said bill of complaint as to the order and priority of his judgment, and the decree pro confesso thereon fixing the same, did not appear before the Master.
The petition then states the report of the Master and the subsequent-proceedings in the cause; and that the sheriff under the fi. fa. issued "out of this Court has advertised the mortgaged premises to be sold on the 20th of January, 1850.
That the first knowledge or information the petitioner had of the said error or mistake in the said Master’s report and decree and execution was some time after the issuing of said execution,, and since the last term of this Court.
That the said mortgaged premises are all the property of the said Williams levied on by the sheriff under the petitioner’s said judgment, except a lot of less than one-fourth of an acre, worth only about $40 or $50 ; and that the said mortgaged premises,, with said lot, will not, as the petitioner believes, produce sufficient to satisfy, all of the said three incumbrances.
He prays, that the said report, decree and execution may be so amended or corrected that his judgment shall be directed to be paid next after the complainant’s mortgage and costs; or,, that the sheriff may be directed, after paying the amount due the complainant and his costs, to apply the residue of the proceeds of sale of the mortgaged premises to the payment of the petitioner’s judgment and his costs in this behalf; and for such further and other relief, &c.
*539On this petition, an application was made to the Court, on notice, for an order pursuant to the prayer of the petition. And the Court, on the 2d of January, 1850, made an order that cause be shown why the relief prayed by the petition should not be granted; and that all proceedings on the execution issued out of this Court be stayed until the further order of the Court, and that both parties have leave to take depositions.
Depositions were taken and exhibits made.
Browning, for the petitioner,
cited 2 Daniel’s Ch. Pr. 1221, 1358; 1 Ib. 569, 577, note; 3 Mylne & Craig, 183; Halst Dig. 230, sec. 4; Rev. Stat. 909, sec. 21.
Dudley and P. D. Vroom,
contra, cited 1 Harr. Ch. 420; 5 J. J. Marsh, 328; 2 Daniel’s Ch. Prac. 1232; 1 Halst. Dig. 236, 9; Pott’s Ch. Prec. 96, note.