Hilton v. F. W. Sims & Co.

Montgomery, Judge. Homestead having been waived by the mortgage which secured the collateral note, given in this case, it became, in the opinion of counsel for the plaintiff in error, important to show that the debt to secure which the collateral note had been given, was paid off by the proceeds of the cotton shipped by Hilton to F. ~W. Sims & Company, after the time had expired, to secure the advances, during which the note, and mortgage were given. Could this have been shown, then the application for homestead would have been relieved from the embarrassment of the waiver contained in the mortgage, which was signed both by husband and wife. To show this, counsel relied on that principle of law which applies payments by a debtor to his creditor to the oldest debts, where neither party make any appropriation of the payments. Unfortunately for the application of the principle in this case, both debtor and creditor applied the proceeds of the cotton received and sold, after November 1, 1869, to debts other than the debt due the factors, at that date, to-wit: to the taking up of drafts drawn by the debtor, in favor of third persons (thus showing his application of the funds) on his factors, the defendants in error, and the payment by them of those drafts, and an outstanding note or two of Hilton, due to a third person, thereby showing their application of the proceeds of the cotton sales. After payment of the notes and drafts, F. W. Sims & Company applied the balance of cotton proceeds to the debt due November 1, 1869, leaving still due, of this debt, just the sum found by the verdict, and for which the collateral securities are bound. The note and mortgage secured no advances made after November 1, 1869, but they were all paid by the cotton forwarded after that date, inasmuch as they consisted of debts due third persons, and paid, as before stated, by the factor, either at the instance of the planter himself, or of his own motion. Judgment affirmed.