tion should be enforced, without regard to them. Brown vs. Appleby, 1 Sandf., 170; Redfield on Railways, § 48 and note 1; Blodgett vs. Morrill, 20 Vt., 509; White Mountain R. R. vs. Eastman, 34 N. H., 124. The third paragraph of the defendant's answer is liable also to the objection, that it sets up a contemporaneous parol understanding inconsistent with the terms of the written agreement. The judgment must be reversed with costs, and the cause remanded for a new trial. June Term, 1860. RICE V. CRIBB et al. RICE VS. CRIBB and another. The transfer of a note secured by a mortgage, carries with it the interest in the mortgage. A reasonable solicitor's fee, in case of a foreclosure, may be stipulated for in a mortgage, and recovered. A judgment of foreclosure of a mortgage, where a portion of the mortgage debt is not due, should determine the sum actually due to the plaintiff for principal and interest, and also the whole amount secured by and unpaid upon the mortgage, with interest, and should contain a provision for a stay of proceedings, in case the defendant, before the sale, shall pay to the plaintiff, or to the sheriff, the amount found due, with interest and costs. Howe vs. English and others, 6 Wis., 262, referred to and followed. The judgment in such a case should be for the whole sum secured by the mortgage and unpaid; and where the court is satisfied, from the referee's report, that the property may properly be sold in parcels, should direct the sale of so much thereof as may be necessary to pay the amount due with costs, &c., and should also provide that the plaintiff, upon default in the payment of any instalments of principal or interest still to become due, may, on application to the court, obtain a further order, founded on the judgment, for the sale of so much of the mortgaged premises as may be sufficient to satisfy the amount so to become due, with costs of the petition and subsequent proceedings thereon; and so on from time to time, as often as default shall happen. APPEAL from the Circuit Court for Racine County. This was an action commenced in April, 1858, to foreclose a mortgage given to secure the payment of four notes, two only of which were due at the commencement of the suit, the others not falling due until January, 1859. The notes and mortgage were executed by Cribb and Appleton, to one Mygatt; and the complaint alleges that the notes were as 1860. RICE June Term, signed by the payee to the plaintiff. The mortgage stipulated for the payment, by the mortgagor, of fifty dollars as solicitor's fee, in case of a foreclosure. During the progress CRIBE et al. of the cause, an order was made by the circuit court, by which it was referred to a court commissioner, "to take the evidence in the action, and to compute, ascertain and report the amount actually due to the plaintiff, for principal and interest on said notes and mortgage, and which remains unpaid, including interest thereon to the date of the report; also to take proof of the facts and circumstances stated in the complaint, and report the same to the court; and also to ascertain and report the situation of the mortgaged premises, and whether, in his opinion, the same can be sold in parcels without injury to the interests of the parties; and if he should be of the opinion that a sale of the said premises in one parcel will be most beneficial to the parties, that he report his reasons for said opinion." The referee made a full report as to the matters referred to him, showing that the amount due to the plaintiff, at the date of the report, was $1,353,20; that the whole amount secured by the mortgage and unpaid, was $2,530,43; and that the mortgaged premises could be sold in two different parcels, without injury to the interests of the parties. The judgment, which was rendered on the 3d of November, 1858, after reciting the order of reference, and the report thereon, proceeded as follows: "It appears that the sum of $1,353,20, was due [on said mortgage] at the date of said report, and that the premises can be sold in parcels, and on motion of the attorney for the plaintiff, it is adjudged, that the mortgaged premises described in the complaint in this action, as hereinafter set forth, or so much thereof as may be sufficient to raise the amount due to the plaintiff for principal, interest and costs, and which may be sold separately without material injury to the parties interested, be sold at public auction, &c.; that out of the moneys arising from such sale, after deducting the amount of his fees and expenses on such sale, the said sheriff pay to the plaintiff or his attorney, the sum of $54,44, adjudged to the plaintiff for costs and charges in this action, as also the sum of $30,00, which is June Term, 1860. RICE V. hereby allowed to the plaintiff, on application therefor, in addition to the said costs, pursuant to the statute, making together the sum of $84,44, with interest thereon from the date hereof, and also the amount so reported due as afore- CRIBB et al. said, making, in all, the sum of $1,437,64, together with the legal interest thereon from the date of said report, or so much thereof as the purchase money of the mortgaged premises will pay of the same; that he bring the surplus moneys arising from such sale, if any there be, into court without delay, to abide the further order of the court; that he make a report of such sale, &c.; that if the proceeds of such sale be insufficient to pay the amount so reported as due the plaintiff, with interests and costs, as aforesaid, that the said sheriff specify the amount of such deficiency in his report of sale; and that the defendants, James Cribb and Samuel B. Appleton, pay the same to the plaintiff, and that the purchaser be let into possession, &c. It is further adjudged, that the defendants, and all claiming under them after the filing of notice of the pendency of this action, be forever barred," &c. Here followed a description of the mortgaged premises. From this judgment and the order therefor, the defendants appealed. Geo. B. Judd, for appellants: Although the evidence reported by the referee shows that the premises could be sold in separate parcels without injury to the parties, yet the judgment fails to designate in what order the different parcels shall be sold, but is absolute for the sale of the whole premises. R. S., 858, §6; 5 Paige R., 38; 6 id., 35; 5 John. Ch. R., 235. Only a part of the amount secured to be paid by the mortgage had become due; yet the order for judgment, and the judgment itself, are peremptory and absolute for the sale of the premises, and omit to provide, as required by law in such cases, that if, previous to the sale, the defendants shall bring into court the principal and interest due, with costs, the proceedings in the action shall be stayed. R. S., 858 4 and 5; Howe vs. English, 6 Wis., 262; 2 John. Ch. R. 486; 4 id., 534. The report of the referee is also defective. June Term, 1860. RICE V. O. S. Head, for respondent: The judgment herein is in due form. The report of the referee showed that the whole amount secured by the mortCRIBB et al. gage was not due, and also, that the premises could be sold in parcels. For form of judgment in such case, see 2 Barbour's Chancery Practice, p. 617. The judgment herein is drawn in accordance with the above form. July 10. The only case in which the plaintiff is entitled to a judg ment of foreclosure and sale for a greater sum than is then due, is where the premises cannot be sold in parcels. R. S., c. 145, §§ 6, 8 and 9; 2 Barbour's Ch. Pr., p. 615. The judgment, in this case, being for no more than the amount actually due, and the premises being susceptible of division, it would have been error if the judgment had been conditional. R. S., c. 145, § 5; Howe vs. English, 6 Wis., 262. By the Court, DIXON, C. J. A reference to the judgment roll sent with this case, shows that the counsel for the appellants was mistaken in supposing that the referee named in the order of reference had failed to comply with its requirements. The report was a full and complete answer to all matters referred to him. We can discover no errors in the proceedings, from the time of the making of the order of reference, up to, and including the filing and confirmation of the referee's report. The objection of usury is clearly untenable, and the fact, that there was no formal assignment of the mortgage produced and proven, cannot, at this day, be listened to, as a defense in a foreclosure action. The transfer of the notes carries with them the interest in the mortgage. We are of opinion, however, that the judgment, as rendered, is erroneous and irregular in matters of substance as well as of form, and that it must, therefore, be reversed. The action was commenced to foreclose a mortgage, where a part only of the principal sum secured, with interest, was due, the residue being payable at a future time. The judg ment, instead of adjudging and determining the sum actually due to the plaintiff at the date of the report of the 1860. RICE V. referee, for principal and interest, and the amount secured June Term, by, and unpaid upon the notes and mortgage, with interest to the date of such report, only adjudges and determines the sum actually due. There is no provision for a stay of pro- CRIBB et al. ceedings under the judgment, in case the defendants should, before the day appointed for the sale, pay to the plaintiff, his attorney or the sheriff, the amount found actually due, with interest and costs. If this was necessary in a judgment like that in the case of Howe vs. English 6 Wis., 262, it is certainly equally so here. No reason can be urged for its insertion in that case, which does not exist in equal degree in this; and although I can see no particular necessity for it in either, yet as it has once been adopted by this court, no great harm or inconvenience can ensue from its enforcement when it is once understood by the profession. The only feature in which this case differs from Howe vs. English, is that there the referee found and reported that the mortgaged premises were so situated that they could not be sold in parcels, while here he found and reported that they could be so sold. The mortgagor's right, by payment, to stop proceedings, is of course not affected by this circumstance. But the most substantial defect in the judgment under consideration, in our opinion, consists in its failure to make any provision, or to give any direction, as to the instalments of principal or interest which were thereafter to become due. The judgment is in the precise form in which it would have been, if the principal and interest actually due were the entire amount secured by or unpaid upon the mortgage. The pleader seems to have acted upon the idea that he was at liberty to proceed in this manner to enforce the payment of the sum actually due; and that upon the judgment thus obtained having performed its functions, or upon the payment of the same by the mortgagors, and a default accruing in the payment of a future instalment of principal or interest, the plaintiff could commence a fresh action of foreclosure. A glance at the provisions of sections 86, 87, 88, 89 and 90, of the statutes of 1849, under which this judgment was entered, which are identical with sections 4, 5, 6, 7 and 8, of chapter 145, of the statutes of 1858, will show that this notion is quite a |