Form No. 13936.1 (Precedent in People's Loan, etc., Bank v. Garlington, (S. Car. 1889) 32 S. E. Rep. 514.) [(Title of court and cause as in Form No. 5932.)]3 The complaint of the above-named plaintiff shows to the court: (1) That said plaintiff, the People's Loan & Exchange Bank of Laurens, South Carolina, is now, and was at the times hereinafter mentioned, a corporation duly chartered by and organized under the laws of the state of South Carolina, and is competent to sue and be sued in the courts of this state. (2) That on or about February 13, 1892, the said defendant John D. Garlington made and delivered to said plaintiff his promissory note in writing, whereby he promises to pay said plaintiff or order four hundred and 85-100 dollars on November 1st after the date thereof (1892), with interest after maturity at the rate of eight per cent. per annum. (3) That on or about the said 13th day of February, 1892, the said defendant John D. Garlington, in order to better secure the payment of said debt, executed and delivered to said plaintiff an instrument in writing, under his hand and seal, commonly called a "mortgage," whereby he granted, bargained, sold and conveyed to said bank, by way of mortgage, all that lot, tract, piece, or parcel of land situate, lying, and being in said county and state, containing sixteen hundred and forty-five acres, more or less, and bounded by lands of Phebe Y. Witherspoon, Golden, John G. Williams, et al.; also, all his interest (being one-half) in and to all that lot, tract, piece or parcel of land containing sixteen hundred acres more or less, bounded by his other lands, by lands of the state of South Carolina and others, and known as the "Spring Grove Place," conditioned to pay said debt, interest, and an attorney's fee, in case the debt had to be collected by law. (4) That said mortgage was duly recorded in the office of R. M. C. for said county on the 24th day of February, 1892, in book 12, p. 671. (5) That the tract of land first above set out has been sold under a prior mortgage, leaving no proceeds for junior liens. (6) That said plaintiff has incurred ten per cent. attorney's fee upon the amount due by said defendant, by reason of his failure to pay said debt, and by reason of this suit. (7) That on or about the 22d day of January, 1894, the said John G. Garlington, in order to better secure the payment of said debt, and in order to get indulgence thereon to December, 1894, made and delivered to said plaintiff his other obligation in writing, upon his hand and seal, commonly called a "mortgage,' whereby he granted, bargained, sold and conveyed to said plaintiff, by way of mortgage, all that other lot, tract, piece, or parcel of land, situate, lying, and being in said county and state, containing two hundred and seventeen acres, more or less, and bounded by lands of Dr. F. G. Fuller, Witherspoon, Bailey store lot, Mr. J. L. Young, and others, known as his "Milton Place," conditioned to pay said debt, 1. South Carolina. - Code Civ. Proc. plaintiff in this proceeding was affirmed (1893), 137, 144, 153, 156, 188. See on appeal. supra, note I, p. 448. 3. The matter to be supplied within 2. The judgment in favor of the [] will not be found in the reported case. interest, and ten per cent. attorney's fee, when due. (8) That in and by said mortgage the said Garlington agreed, if said debt was not paid on December 1, 1894, that he would surrender possession of said premises to said bank, and that it should receive the rents and profits thereof thereafter. (9) That said mortgage was duly recorded in the office of R. M. C. for said county on January 22, 1894, in book 14, p. 144. (10) That said debt is now due and owing the bank, and the conditions of said mortgages have been broken, and no part of said amount, nor interest nor attorney's fee, has been paid. (11) That the defendant John D. Garlington is insolvent, and the rents of the Milton place are in danger of being lost to plaintiff. (12) That the defendants John G. Williams and T. E. Hairston claim some interest in and to said premises, which plaintiff denies. (13) That it appears from the records in the office of the clerk of the court of common pleas for said county that the defendants other than those mentioned in the last paragraph claim some interest in said property by way of junior liens. (14) Wherefore plaintiff asks that a receiver be appointed to take charge of the Milton place, and receive the rents and profits thereof, and the defendants be enjoined from disposing of the rents thereof, or from interfering therewith; that the mortgages be foreclosed, the premises sold, the proceeds be applied to the payment of said debt, interest, and costs, the defendants and all parties claiming under or through them be forever barred of their equity of redemption; and that the rights of all the parties to this action in said lands be adjudicated; and for the costs of this action, together with such other and further relief as to the court shall seem just and equitable. [(Concluding with signature and verification as in Form No. 5932.)]1 (ee) Praying for Deficiency Judgment. 1. The matter to be supplied within [] will not be found in the reported case. 2. Under a prayer for general relief, it seems, in the absence of statutes to the contrary, that a personal judgment for deficiency may be rendered in cases where the defendant is personally liable for the payment of the debt. Mattair v. Card, 18 Fla. 761; Foote v. Sprague, 13 Kan. 155; Grand Island Sav., etc., Assoc. v. Moore, 40 Neb. 686; Nolen v. Woods, 12 Lea (Tenn.) 614; Huse v. Washburn, 59 Wis. 414; Ohio Cent. R. Co. v. Central Trust Co., 133 U. S. 83; Shepherd v. Pepper, 133 U. S. 626. But as to the effect of statutes upon this rule, see Simonson v. Blake, (Supreme Ct. Gen. T.) 20 How. Pr. (N. Y.) 484; Hansford v. Holdam, 14 Bush (Ky.) 210; Giddings v. Barney, 31 Ohio St. 80; California Bank v. Dyer, 14 Wash. 279. The better rule, however, is that the judgment for deficiency should be prayed for if desired. Simonson v. See also, generally, supra, note I, Illustrations of prayers which were sufficient to authorize judgments for deficiency may be found in Johns v. Wilson, (Ariz. 1898) 53 Pac. Rep. 583; Simons v. McDonnell, (Mich. 1899) 79 N. W. Rep. 916; Petteys v. Comer, 34 Oregon 36; Fisher v. White, 94 Va. 236; Rogers v. Turner, 19 Wash. 399; Stites v. Thompson, 98 Wis. 329. Illustrations of prayers insufficient to authorize deficiency judgments may be found in Scamman v. Bonslett, 118 Cal. 93; Long v. Herrick, 26 Fla. 356. In New Jersey, no deficiency judgment or decree is now allowed under the statute. N. J. Gen. Stat. (1895), p. 2111, § 42. Surplusage. A prayer for a personal Form No. 13937.' (Title of court and cause, and commencement as in Form No. 5910.) I. That on the first day of March, 1893, at the city and county of San Francisco, in the state of California, the said defendants, Richard Roe and Mary Roe, made their certain promissory note in writing, bearing date on that day, in words and figures following, to wit: (setting out note verbatim), and then and there delivered the same to this plaintiff. II. That the said defendants, Richard Roe and Mary Roe, to secure the payment of the said principal sum and the interest thereon, as mentioned in said promissory note according to the tenor thereof, did, at the same time and place, execute under their hands and seals, and deliver to this plaintiff a certain mortgage bearing date on that day, and conditioned for the payment of the said sum of two thousand dollars, and interest thereon at the rate, and at the time, and in the manner specified in said mortgage, and in the said promissory note, and according to the conditions thereof; which said mortgage was duly acknowledged and certified, so as to entitle it to be recorded, and the same was afterwards, to wit, on the second day of March, 1893, duly recorded in the office of the county recorder of the city and county of San Francisco in liber 196 of mortgages, page 237; a copy of which said mortgage, with the indorsements thereon, is hereunto annexed, marked Exhibit A, and made a part of this complaint. III. That the interest on the said principal sum mentioned in said promissory note, and in the said mortgage, has been paid up to September 1, 1896, but that two thousand dollars, the principal sum mentioned in said promissory note and mortgage, together with interest thereon at the rate of ten per cent. per annum from the first day of September, 1896, still remains due and unpaid from said defendants, Richard Roe and Mary Roe, to this plaintiff.* IV. That the plaintiff is now the lawful owner and holder of said note and mortgage. V. That the defendants John Fen and Richard Den have or claim to have some interest in or claim upon said, premises, or some part thereof, as purchasers, mortgagees, judgment-creditors, or otherwise, which interest or claim are subsequent to and subject to the lien of the plaintiff's mortgage, to wit: (stating nature of interest or claim if known). Wherefore, the plaintiff prays judgment against the said defendants, Richard Roe and Mary Roe, for the sum of two thousand dollars, with interest at the rate of ten per cent. per annum, from the first day of September, 1896, and for (stating other relief asked, if any), costs of suit, and for ten per cent. attorney's fee provided for in said mortgage; that the usual decree may be made for the sale of said premises by the sheriff of said city and county, according to law and the prac judgment against the mortgagor in an equitable action to foreclose will be treated as surplusage when necessary. Weary v. Wittmer, 77 Mo. App. 546. 1. California. (1897), § 726. Code Civ. Proc. See also, generally, supra, note 2, p. 490. tice of this court; that the proceeds of said sale may be applied in payment of the amount due the plaintiff, and that said defendants and all persons claiming under them subsequent to the execution of said mortgage upon said premises, either as purchasers, incumbrancers, or otherwise, may be barred and foreclosed of all right, claim, or equity of redemption in the said premises, and every part thereof, and that the said plaintiff may have judgment and execution against the said defendants, Richard Roe and Mary Roe, for any deficiency which may remain after applying all the proceeds of the sale of said premises properly applicable to the satisfaction of said judg ment. That the plaintiff or any other parties to the suit may become purchaser at said sale; that the sheriff execute a deed to the purchaser; and that said purchaser be let unto the possession of the premises on the production of the sheriff's deed therefor; and that plaintiff may have such further relief in the premises as to this court may seem meet and agreeable to equity. (Concluding with signature and verification as in Form No. 5910.) Form No. 13938.1 (Venue and title of court and cause, and commencement as in Form No. 5920.) I. That heretofore, to wit, on the first day of March, A. D.. 1892, at St. Paul, in said county, said defendant Richard Roe, for value received, made and delivered to this plaintiff his one promissory note in writing, bearing date on said day, whereby he promised to pay to the order of this plaintiff the sum of two thousand dollars, five years after date, with interest thereon at the rate of seven per cent. per annum, payable annually from said date until paid. II. That to secure the payment of the principal and interest mentioned in said note, the said defendant Richard Roe, at the time and place aforesaid, duly executed, acknowledged and delivered to this plaintiff a certain mortgage bearing date the said first day of March, 1892, whereby he did grant, bargain, sell and convey to this plaintiff, his heirs and assigns, the following described premises: (Here insert description), upon the condition, however, that if the said defendant, his heirs, executors or administrators, should well and truly pay, or cause to be paid, to this plaintiff, his heirs, executors, administrators or assigns, the sum of two thousand dollars and interest, according to the conditions of said note, then said mortgage should be null and void; otherwise to remain in full force and effect. But if default should be made in the payment of said sum of money, or interest, or any part thereof, at the time and in the manner herein before specified for the payment thereof, the said defendant, in and by said mortgage, did, in such case, thereby authorize and fully empower this plaintiff, his heirs, executors, administrators or assigns, to sell the said premises at public auction, and convey the same to the purchaser, in fee-simple, agreeably to the statute in such case made and provided, and out of the moneys arising from such sale to retain the principai 1. Minnesota. Stat. (1894), § 6028 et seq. See also, generally, supra, note 2, p. 490. and interest which should then be due on said note, together with all costs and charges, and also the sum of one hundred dollars as attorney's fees, and pay the overplus, if any, to said defendant, his heirs, administrators or assigns. III. That said mortgage was duly recorded in the office of the register of deeds in and for the county of Ramsey, on the second day of March, 1892, at 9 o'clock 4. M., in book 186 of mortgages, on page 342. IV. That no part of said sum has been paid except the interest up to March, 1896, and that there is now due on said note and mortgage the sum of two thousand dollars, with interest thereon at seven per cent. per annum from March 1, 1896. That no action at law or other procecding has been had to recover the debt secured by said note and mortgage, or any part thereof. V. That the defendants John Fen and Richard Den have, or claim to have, some interest in or lien upon said mortgaged premises, which interest or lien, if any, has accrued since the lien of said mortgage, and is subject thereto. That no personal claim is made against any defendant, except the defendant Richard Roe. Wherefore plaintiff demands the judgment of this court: Adjudg ing the amount due and to become due on said note and mortgage, with costs and disbursements, including an attorney's fee of one hundred dollars, and directing a sale of the premises aforesaid, and the payment from the proceeds thereof of the costs and disbursements of this action, and the amount due the plaintiff upon said note and mortgage, together with interest to the time of such payment; and that the defendants, and all persons claiming under them, may be barred and foreclosed of all right, claim, liens and equity of redemption in said mortgaged premises, and every part thereof. That said defendant Richard Roe may be adjudged to pay any deficiency which may remain after the application of all moneys to said payments properly applicable thereto; and that plaintiff have such other and further relief as to the court shall seem just and proper. (Concluding with signature and verification as in Form No. 5920.) Form No. 13939.' (Precedent in Taylor v. Coots, 32 Neb. 33.)9 [(Title of court and cause, and commencement as in Form No. 5923.)]3 First-That on the 11th day of April, 1857, the said defendant made his certain promissory note, dated on said day at Des Moines, Polk county, Iowa, whereby for value received, three months after date I promise to pay to the order of said plaintiff $243.80, at Oskalooska, Mahaska county, Iowa, and delivered the same to said plaintiff, who thereby became and still is the true and lawful owner and holder thereof. Second That for the purpose of securing the payment of said. 1. Nebraska. 6367. See also, generally, supra, note 2, p. 490. Comp. Stat. (1899). § 2. It was held in this case that the decree of foreclosure rendered was not subject to collateral attack, upon the various grounds and objections set out and disposed of in the opinion of the court. 3. The matter to be supplied within [] will not be found in the reported case. |
