Sheffield, Et Ux. v. Virginia-Carolina Chemical

Davis, C. J. — This was a mortgage foreclosure wherein the appellee obtained a decree against the appellant for' the sum of $1,982.38 as the principal debt. The facts are that the mortgagors executed a promissory note for $3,000.00 payable to the order of Virginia Carolina Chemical Corporation, the note reciting that it was' given for fertilizers received by the makers. The note was secured by a mortgage which was herein foreclosed. The note itself constituted an evidence of indebtedness when executed and delivered, whether at that time any fertilizers had been delivered or not, since the payee’s promise to deliver fertilizers on the credit of the executed note was itself at the time the note was signed, a valuable consideration sufficient to support the note’s validity, at least to the extent that the promise to deliver has been subsequently performed by the payee in consideration of *722 the previous execution and delivery of the note at the time when the mortgage was made. If any error was committed by the court with reference to entering a decree before the cause was set down by the complainant in accordance with Chancery Rules 85 and 86 it is not affirmatively made to appear by the record. Where the record is silent as' to whether or not a chancery cause has been properly set down for final hearing in accordance with the rules, the presumption is in favor of the regularity of the proceedings which will ■ not be overturned merely because the record does not affirmatively show compliance with rules' of procedure. The presumption is that the rules were complied with, else the court would not have entered its decree. To the extent that the decree is for a principal indebtedness in excess of the principal sum of $1,909.00 the judgment is excessive and should be modified by changing the sum of $1,982.38 to $1,909.00 as it appears in the decree. Otherwise the decree is correct and should be affirmed. It is therefore ordered that the decree appealed from, as modified by a reduction of the principal debt from $1,982.38 to $1,909.00 be affirmed. Decree modified and affirmed. Ellis and Terrell, J. J., concur. Whitfield, P. J., and Brown and Buford, J. J., concur in the opinion and judgment.