GEORGE MILLER, Respondent, v. D. W. CHERRY et al. H. GLAUBER, one of Defendants, Appellant
Miller v. Cherry
Brosnan, J., concurring.
GEORGE MILLER, Respondent, v. D. W. CHERRY et al. H. GLAUBER, one of Defendants, Appellant.
GEORGE MILLER, Respondent, v. D. W. CHERRY et al. H. GLAUBER, one of Defendants, Appellant.
A direction in a foreclosure decree to sell mortgaged property for gold coin only', is injurious to one holding a subsequent lien, and such subsequent lien-holder may appeal from the judgment and have it reversed.
There being nothing in the record on which this Court could act in setting aside the alleged sale under an erroneous judgment, the appellant must seek his remedy by motion in the Court below.
Appeal from a decree of the District Court of the First Judicial District, Hon. R. S. Mesick presiding.
The facts are stated in the Opinion.
Corson 8f White, counsel for Appellant.
Mitchell cf Hundley, counsel for Respondent,
Opinion of the Court by
Beatty J.,
Brosnan, J., concurring.
This ivas a proceeding to foreclose a mortgage. The appellant was a junior mortgagee, and complains that the decree of the Court directs the mortgaged property to be sold for gold coin. There is no doubt but this form of decree is injurious to the junior mortgagee. If so sold, the property would be more likely to be exhausted before the senior mortgage is satisfied. The judgment must be modified on the authority of Milliken Brothers v. Sloat; Hastings v. Burning Moscow Co., and other cases decided in this Court. The Court below will correct the decree by striking therefrom all those portions which direct that any of the mortgage debts be paid in gold coin, and all those portions directing the Sheriff to sell for gold coin, and have the decree to read for so many dollars and cents, without designating the kind of money in which it is to be paid. The appellant must recover his costs in this Court.
In other respects the decree of the Court below will stand afiirmed.
We are asked to make an order setting.aside the sale made under this decree. There is nothing in the record on which we could base such an order. If the appellant is entitled to such relief, he must seek it by an appropriate motion in the Court below.