North Dakota Reports/Volume 1/Baker v. Marsh

Edward L. Baker et al., Plaintiffs and Appellants, v. Lucius D. Marsh et al., Defendants and Respondents.

1. Mortgages—Foreclosure—Sale.

Where a debt is secured by mortgage on several parcels of lands, and the court finds that the mortgagee is entitled to a sale thereof, it has no authority to except any part thereof from the decree of sale, though the value of the remainder is greater than the amount of the debt.

(Opinion Filed February 5, 1890.)

APPEAL from district court, Barnes county; Hon. William H. Francis, Judge.

Action by Edward L. Baker and others, trustees of the estate of Robert H. Baker, deceased, against Lucius D. Marsh, as administrator of John Marsh, deceased, John Kurtz, Phebe Marsh, and others, to foreclose a mortgage on three parcels of land executed by John Marsh and John Kurtz to Robert H. Baker. One of these parcels of land had been conveyed to Phebe Marsh subsequent to the mortgage, and improvements had been made thereon by her. The case was referred, for the taking of testimony and ascertaining the value of the premises. The value of the two parcels was found to be greater than the mortgage debt. The court found that plaintiffs were entitled to the sale of all the premises, but decreed that the two parcels be sold, and the other be excepted from the sale; and plaintiffs appeal.

A. C. Labrie, (Stone, Newman & Resser, of counsel,) for appellants. Herman Winterer, for respondents.

Per Curiam. This action was brought to foreclose a mortgage. Judgment in the court below was rendered in favor of the plaintiffs, decreeing the foreclosure of the mortgage, and the sale of only a portion of the mortgaged premises. On what theory the trial court discharged a portion of the mortgaged property from the lien of the mortgage, we fail to understand. The creditor has a right to resort to his entire security in a legal manner, and to deprive him of that right is judicial confiscation. The judgment of the district court is reversed, and that court is directed to enter judgment of foreclosure and sale, as prayed for in the complaint. All the judges concur.