Chamberlin & Co. v. Beck, Gregg & Co.

Jackson, Chief Justice. 1. To foreclose a mortgage on personalty, the affidavit may be made before the clerk of the superior court, and execution issue without any order from the judge of the superior court. Code, §3971. 2. Substantially the execution follows the affidavit and specifies the sum due each of plaintiffs. It commands a sale, because it requires the sheriff to make the money out of the mortgaged goods. 3. The mortgage is one. It is on the same goods to secure two firms for several sums due each, but on one instrument under which each plaintiff claims. One foreclosure, therefore, of the one mortgage under which both plaintiffs claim is not obnoxious to section 3236 of the Code, which declares, “ that distinct and separate claims of or against different persons, cannot be joined in the same action.” It does not hurt defendants to make one foreclosure; it saves costs and helps them. 4. The execution was properly returnable to the next term after the money could possibly be made by levy and sale, and it were folly to order the sheriff to return the money into court at a term when he could not have had time to make it. Code, §3635, means that next term after it can be lawfully made. 5. The plea of recoupment is an attempt to engraft a new stipulation or condition on the mortgage by parol testimony. This cannot be done. So that without reference to the reason given by the court for the judgment, that the money was already in court, the affidavit was properly overruled on demurrer thereto. Judgment affirmed.