McDonald v. Workingmen's Building Ass'n

Alvey, J., delivered the opinion of the Court. There are two appeals in this record ; one from the decree of the 10th of June, 1819, decreeing the sale of the mortgaged premises, and the other from the decree of the 30th of April, 1883, in personam, decreeing the payment by the appellant of the balance due on the mortgage debt, after applying the net proceeds of the sale of the mortgaged premises. 1. As to the first of these appeals, it is shown by the appellant himself that his equity of redemption in the mortgaged property had been disposed of before the decree of the 10th of June, 1819, was passed; and that, consequently, he has no interest in the reversal of that decree in respect to any remaining interest in the mortgaged premises ; and he disclaims all purpose or desire of affecting the rights of the purchaser under the decree. We may therefore, without inquiring into the right of appeal, dismiss the appeal from the decree of the 10th of June, 1819. 2.

With respect to the- decree of the 30th of April, 1883, questions are raised of some practical importance. That decree is in personam, and was passed under the Act of 1816, ch. 321, (Code, Art. 16, sec. 125,) against the appellant for the payment of the balance of the mortgage debt, after the application of the net proceeds of the sale of the mortgaged property. The statute provides, “that if upon the sale, under the decree, of the whole mortgaged prop ⁵⁹¹ erty, the net proceeds thereof, after the costs allowed by the Court are satisfied, shall not suffice to satisfy the mortgage debt and accrued interest, as this shall be found by the .judgment of the Court upon the report of the auditor thereof, the Court -may, upon the motion of the complainant, enter a decree in personam, against the mortgagor, or other party to the suit who is liable for the payment thereof; provided, tlie mortgagee would, be entitled to maintain an action at law 'upon the covenants contained, in said mortgage for said residue of the said mortgage debt, so remaining unsatisfied by the proceeds of such sale, which decree shall have the same effect as a judgment at law, and may be enforced only in like manner by a writ of execution in the nature of a writ of fieri facias, or otherwise.” It is contended by the appellant that the decree in personam, under the statute, was entered without any notice to the appellant, or any opportunity allowed him to show cause against such decree, and that it was therefore erroneously entered. ' And upon examination of the record it is apparent that no such notice was in fact; given. In thus entering the decree we think there was error.

The Court cannot ho called upon to render the decree in