Sutton v. Sutton

¶1 By the Court.

¶2delivering the opinion.

¶3A rule nisi had been taken and duly served to foreclose a mortgage; one William Strickland by his counsel in-. *385tervened, on application to make the rule absolute, and. insisted that there were such discrepancies between the debt and the mortgage, and vagueness in the description of the land, that no foreclosure could be made. Other objections were interposed as to interlineations iii the mortgage deed, &c.

¶4The Court granted the rule absolute, but took time to consider the questions made in the case. The mortgagor himself was present in Court, making no objection to the proceeding; and it does not appear that Strickland was any way interested.

¶5At the next Term of the Court, the Judge held that the discrepancy was fatal; neither could it be explained by parol proof, at law; but that the mortgagee must go into equity to reform the instrument. The Court also decided that Strickland could not be heard, but that he would of his own accord refuse the motion.

¶6[1.] We cannot give to this judgment our approval. Why go into chancery when the mortgagor acknowledges by his silence at least, that the mortgage was given to secure the indebtedness included in it? If he was satisfied, who else had any right to gainsay the foreclosure? No one. And we are clear that the Court erred in overruling the motion. Should it turn out that there was fraud and collusion between the parties, which is not pretended, the judgment can be attacked hereafter by any body whom it seeks to disturb, except the mortgagor himself. Sufficient unto the day is the evil thereof.

¶7I would merely add, that by a recent Act of the Legislature, (Laws, 1857, p. 58,) mistakes in grants may be shown, by parol proof, in suits both at law and in equity. It is needless to attempt to exclude parol testimony, as to mistakes in other instruments.

¶8Judgment reversed.