Campbell v. Francis

APPEAL from the circuit court of Washington county.

The matters in controversy in this case arose out of proceedings in the circuit court, under the mandate of this Court issued at February term 1815, in the case of Pratt and others vs. Campbell and others, reported 9 Cranch, 456.

In the circuit court, the appellants in this case filed their bill alleging that they had been injured by the proceedings under the mandate, 9 Cranch, 58, and that the court gave a decree against their claims, as set forth in the bill. From this decree they appealed.

The counsel for the appellants contended, that by the decree passed by the circuit court in the original cause, the appellants had sustained injury in the following particulars.

1. Of the thirty-six squares mortgaged to Law, thirty-two were attached and purchased by the appellant; and four squares therefore remained affected only by Law's mortgage.

Campbell was permitted to redeem his thirty-two, by paying their proportion of the whole of Law's debt; thereby making the four remaining squares bear also their proportion of Law's debt.

Admitting this to be right, it should have been decreed, upon the same principle, that if the parties did not redeem, the sale should be made so as to produce the same result-that is, the four squares not purchased by the appellant should have been sold first, and his thirty-two squares should only have been sold to make up the deficiency of Law's debt.

The court below put on these four squares only the sum of $2806.29, (much less than their proportion) and decreed them to be sold last; thereby saving them to Pratt and others, if the other squares produced enough to pay Law, and thus giving them a preference over the appellant, denied by this court in the original cause.

2. Of the eighteen squares mortgaged to Duncanson, thirteen only were attached and purchased by the appellant-consequently five remained; and these five the appellant contends, on the same principle, should have been sold first, and the appellant's thirteen only resorted to, to make good the deficiency under that mortgage.

It was contended that these errors can be corrected, by this Court's ordering that such of the said squares as have not been sold, shall be sold for the benefit of the appellant-and that the money received for such as have been sold, shall be decreed to him, or the sales rescinded.

3. The court below also erred in requiring the appellant to redeem from both mortgages, and decreeing that in case he did not redeem from both, the squares should be sold to satisfy both.

The case was submitted to the Court on the written arguments of counsel. Mr Swann and Mr Key for the appellants. Mr Jones for the appellees.

Mr Justice JOHNSON delivered the opinion of the Court.