Action by Graeter against Denny and wife, to foreclose a mortgage. Issue, trial by the Court, finding and judgment for the plaintiff
A new trial was asked on the ground that the finding was not sustained by the evidence, and that the amount found was too large. We perceive no error in these respects.
Again, it is urged that the Court had no jurisdiction, the title to real estate coming in question. Graeter had sold the premises to Denny, who, with his wife, executed the mortgage to secure the purchase money. It was alleged that Graeter had no title when he made the conveyance. Reply that he had title. The Court could try the question of title thus raised. Toner v. Mitchell, 13 Ind. 530.
Several other errors are assigned, but they all relate to the character of the judgment rendered, and as no exception was taken in the Court below in this respect, we shall not notice them here.
The judgment below is affirmed with costs and two per cent, damages.
There was a petition for a rehearing filed herein, and the following opinion was rendered thereon:
Worden, J.In this case the mortgage was given to secure the payment of two promissory notes, one of which was due at the commencement of the suit, and the other not. The Court found that there was due the plaintiff the sum of 239 dollars and 60 cents, and that there would be due on the 10th of April, 1861, the further sum of 220 dollars and 83 cents, but did not find whether the property was susceptible of division. No motion for a new trial was made on the ground that *22the Court had not passed upon the question as to the susceptibility of division of the property, even if the defect could be reached in that way, nor was any other motion made by which it was sought to call the attention of the Court to the point. Nor was any motion made to arrest judgment.
It is abundantly clear that on the finding the plaintiff was entitled to judgment; that is to say, he was entitled to judgment for the 239 dollars and 60 cents then due, and that so much of the mortgaged premises as might be necessary, be sold to pay that amount. It is only where a judgment is to be rendered embracing installments not due, that any inquiry is necessary as to the divisibility of the property. 2 R. S. 1852, p. 176, sec. 637, et seq.
The Court could not rightfully render judgment for the whole, including that which was not due, without having found that the property was not susceptible of division; and if susceptible of division, the particular division should be determined by the Court. Brugh v. Darst, 16 Ind. 79.
The Court ordered that enough of the mortgaged premises be sold to pay the sum of 239 dollars and 60 cents; and if there remained any portion of the mortgaged premises, and if the 220 dollars and 83 cents should not be paid when due, such residue should be sold to pay the same; and that any residue of the debt be collected of Benny, the maker of the notes. To this judgment no objection was made or exception taken. We have seen that the plaintiff was entitled, on the finding of the Court, to judgment. If the finding did not authorize the particular judgment rendered, the defendant should have,made his objection, and if overruled, taken his exception. There is no force in the point made by the appellant, on petition for rehearing, that a party can not except to the judgment rendered against him. If, when the Court pronounces judgment, the defendant thinks the particular judgment pronounced is not warranted by the record, in-*23eluding the finding or verdict, though some other or different judgment might be, that is a proper time to make his objection. The thing is then by'no means beyond the power or control of the Court, and such corrections or modifications as might be right could be made. In our opinion, in accordance with the whole theory of our practice, if such objections are not made in the Court below, they are unavailing here. Evey v. Smith, 18 Ind. 461.
J. C. Denny for the appellants. Samuel Judah for the appellee."The petition for rehearing is overruled.