Hanford v. Robertson

Marston, C. J.

The bill of complaint in this case was filed to foreclose a mortgage given to secure the payment of two promissory notes bearing date August 21st, 1875; one being for $700 payable September 1, 1876, and signed by L. D. Kobertson and Samuel Kobertson as makers, and one for $2S00, payable on or before the 1st day of September, 1880, signed by L. D. Kobertson. At the time the bill of •complaint was filed, April, 1878, the $700 note and interest thereon was due, and certain interest was also due and unpaid upon the $2800 note.

In the bill of complaint it is set forth that L. D. Kobertson applied for a loan of $3500 and offered to secure payment of the same by a mortgage upon the lands in question; fhat complainant declined to loan that amount upon the •security offered, but did offer to loan that amount, and look ■to such security for $2800 thereof, and that for the remaining $700 he must have some additional security; that this was agreed to and the $700 note was signed in accordance with such agreement by Samuel Kobertson.

Proofs were taken in the case, and on the 17th day of February, 1881, a decree was rendered in favor of the comqfiainant for the full amount of the two notes with the unpaid interest thereon; ordering a sale of the mortgaged premises, and directing that in case the proceeds were insufficient to pay the entire indebtedness, that the $2800 note and interest should first be paid, the balance if any to be •applied on the $700 note, and in case of a deficiency that the amount thereof be reported, so that the personal liability •of the makers might be resorted to.

From this decree an appeal was taken, and it was here insisted that the $700 note should first be paid out of the proceeds arising from the sale of the mortgaged premises. *102 This indeed is the real and only question of any importance in the case.

The principal facts are not seriously disputed and could not well be. To adopt the course now asked by defendants would be to cut off complainant’s additional security, and compel a payment of the amount of the $100 note out of the assets designed for the security and payment of the larger note and to that extent ask the complainant to reduce his security for the benefit of his surety. This clearly could not have been the intention; on the contrary we must render the security given available by applying the proceeds upon the larger note in the first instance.

It is also claimed that at the time the bill was filed the $2800 note was not due, and that the amount thereof should not have been included in the decree. At the time the decree was rendered this note was past due and was therefore properly included.

In computing the amount due on the $700 note a mistake was made. It is now conceded that the correct amount was $911.60 instead of $1031.19 and the decree should be corrected accordingly, and as thus corrected it will be affirmed with costs.

The other Justices concurred.