Hatcher v. Chancey

Hall, Justice. The plaintiff held four notes falling due at different times, payable in cotton, which were secured by a mortgage on one thousand acres of land. When the first of these notes fell due, she instituted proceedings to foreclose the mortgage, and in her petition for its foreclosure, after setting forth the notes and mortgage, and the failure of the defendant to pay the first note becoming due, she prayed for the sale of the mortgaged premises, and that the surplus funds arising from the sale might be retained by the court, and ordered to be invested to meet those still unpaid. The sale, under the judgment of foreclosure, was directed to be made in accordance with this prayer, and after satisfying they?, fa. issuing upon the judgment, the surplus was to be brought into court, to be invested to meet the indebtedness still unpaid. This course is fully authorized, if not required, by sections 1965 and 3910 of the Code. It is admitted in argument here that, had these notes been payable in money, the course pursued would have been authorized, if not required, by these provisions of the law, but inasmuch as they are payable in specifics, a different rule should prevail. But what that rule or method is, has not been suggested, and we are unabie to conjecture what is proposed as its substitute. The Code, §2'77'4, defines a promissory note as “ a written promise made by one or more to pay another, or order, or bearer, at a specified time, a specific amount of money, or other articles of value. If the payment is in articles other than money, and is not punctually made, the holder may recover the value of such articles at the time the note was due, at the place where it was payable, if a specific place was mentioned, otherwise at the place where it was made, with lawful interest [692] thereon.” From this it appears that a note payable in specifics is placed upon the same footing as one payable in money; in this respect there is no difieren ce between, them. Notes payable in specifics are in no legal sense speculative in their character, as was urged by counsel. They are as certain as those payable in money, and are no less debts. Among other requisites of a mortgage, it must “specify a debt to secure which it is given.” Code, §1955. The law makes no distinction, and recognizes no different mode, in the foreclosure of mortgages given to secure notes payable in money or other things of value, and the courts can make none; were they to attempt to do so, they would be assuming the prerogatives and powers of the legislative department, something that they could not do without a palpable violation of duty, judgment affirmed.