Moore v. Semple

<p>Appeal from the District Court of the Fifteenth Judicial District, County of Colusa.</p> <p>This was an action brought to obtain a decree of foreclosure upon note and mortgage, and a sale of the mortgaged premises.</p> <p>• Semple and five others made a joint and several note, payable to Moore & Allen on the fourteenth day of July, 1856. Afterward, Semple executed a mortgage to secure the payment of the note, and further agreed to pay attorney’s fees. Moore & Allen brought a joint action on these instruments, and Semple filed a demurrer for several grounds. But, before the trial, a stipulation in writing was entered into between the plaintiffs and all the defendants, that a joint judgment should be rendered against all the defendants for the principal, interest and attorney’s fee—the attorney’s fee being liquidated, and the amount paid ; the interest also fixed at a different rate, and a different sum on which said interest should be calculated was also agreed upon. This agreement was not embodied in a statement on appeal, nor was there any bill of exceptions setting it forth, showing in what manner the agreement came before the Court below. The agreement simply forms a part of the record sent up without explanation.</p> <p>The decree of foreclosure after the entry of the judgment against the defendants, proceeded as follows: “ And it is further ordered, adjudged and decreed, that the said mortgage be foreclosed, and that the said mortgaged premises, to wit, all the right, title * * of C. D. Semple of, in, and to ” (here follows a description of the premises) at the end of which the words “ be sold’’.were omitted.</p> <p>The -points made by appellants in this Court were:</p> <p>1st. That the decree differed from the terms of the written agreement of the parties.</p> <p>2d. The decree is void for uncertainty, in this: it does not direct the mortgaged premises to “ be sold.”</p>