The opinion of the court was delivered by
Mr. Chief Justice Simpson.The plaintiff, appellant, admitting that he had at one time given a mortgage to one James Younger, covering certain real estate, of which he was the owner, alleged in his complaint, in the action below, that the defendant was in possession of said mortgage, and had advertised the said land for sale by virtue of a power alleged to have been given in said mortgage; that said defendant was not the rightful owner of said mortgage; that the debt intended to be secured thereby had been paid, and that notwithstanding this, the defendant had refused to deliver up said mortgage, and he demanded judgment, that defendant be enjoined from proceeding to sell, and that said mortgage be delivered up and be cancelled upon the record, and for such other and further relief as might be proper, &c. The complaint was amended by inserting a prayer, that the defendant be required to deliver the said mortgage to the executors of the said James Younger, deceased.
The defendant, by his answer, admitted possession of the mortgage, but denied payment, and averred ownership, and asked judgment of dismissal of the complaint, &c.
The testimony reported by a referee showed that the mortgage in question had been given by the plaintiff to James Younger, to secure a large debt, f>1,000; that it authorized the said Younger, his heirs, executors, administrators, and assignees to sell the mortgage property upon default of payment; that Younger died, leaving a will, in which he bequeathed to his wife his estate upon certain terms, &c.; that in said will the plaintiff and one Lancaster W’ere appointed executors, who qualified, and very soon thereafter this mortgage and the note intended to be secured thereby, with other uncollected assets, were turned over by Lancaster with the knowledge of the plaintiff to the defendant, the widow of James Younger, who, after holding possession for some two years, being unable to make collection thereof otherwise, advertised the land for sale under the power in the mortgage.
His honor, Judge Hudson, before whom the case came to trial, dismissed the complaint, holding that the allegation of payment, *298which was based upon the fact that the debtor had been appointed executor of the creditor, could not avail under the circumstances of this case, and that the plaintiff not suing as executor, but as debtor, the relief he asked could not be granted. At the hearing of this appeal, the appellant abandoned the claim of payment, and based his appeal upon the ground that the Circuit Judge erred in holding th'at the action could not be maintained, as plaintiff did not sue as executor, and that the plaintiff had no right to the relief he sought, and in dismissing the complaint. These exceptions, as urged by the respondent, are very general, and do not disclose distinctly any legal proposition for our review, such as exceptions should always do. It is possible, however, to get a legal proposition out of the 1st exception, to wit, that his honor erred “in holding that the action cannot be maintained, because the plaintiff does not sue as executor.”
The prayer of the complaint was at first that the plaintiff be restrained from proceeding with the sale, and that the mortgage be delivered up and cancelled. This was based primarily upon an allegation of payment, which has been abandoned. The complaint was amended before trial by inserting a prayer, that the note and mortgage be turned over to the executors of James Younger, deceased. Strike out the allegation of payment in the complaint, and there would certainly be no ground to sustain the action for cancellation of the note and mortgage. And we know, of no law wdiich would authorize a debtor to institute and maintain an action, like the one here, demanding that a party in the possession of a note and mortgage against him should be required to deliver them up to some other party.
It may be said, however, that the prayer of a complaint is no part of the complaint itself, and notwithstanding a plaintiff may mistake the relief, yet he should get such as the facts might entitle him to; and that here, it appears from the testimony that defendant is threatening and proceeding to foreclose a mortgage by individual sale of plaintiff’s land, without legal authority, and that the action below should be sustained to prevent this proceeding. This phase of the case does not seem to have been urged before the court below, the case there turning very much upon the question of payment of the note and mortgage by operation of law, *299and his honor made no distinct ruling upon the question. We therefore pass it by, and we do so the more readily because, if the plaintiff is right as to this question, of which we express no opinion, no harm can result from said sale. If the defendant has no power to sell under the mortgage, from any cause, of course such sale -would be a nullity, and therefore harmless.
It is the judgment of this court, that the judgment of the Circuit Court be affirmed.
Mr. Jlstice McGowan concurred.