Evey v. Smith

Per Curium. This was an action by Smith, who was the plaintiff, against Kvey, to foreclose a mortgage on real estate. The mortgage bears date September the 1st, 1859, and was given to secure the payment of three several promissory notes, as follows: One note for 150 dollars, dated October 1, I860: another for 150 dollars, payable on the 1st of October, 1861, and a third for 200 dollars, due October 1, 1862. The defendant answered the complaint, alleging, in his answer, “ that he had fully paid the claim of the plaintiff.” The Court tried the cause, and found for the plaintiff 487 dollars and 20 cents, and, having refused a new trial, rendered judgment that in default of the payment of the sum so found,the premises described in the mortgage be sold, &c., and the proceeds be applied in-the payment of the 487 dollars and 20 cents, &c. The appellant, in his brief, relies for a reversal upon three assignments of error: 1. There is no reply to the defendant’s answer of payment. 2. The judgment is given for the whole sum specified in the mortgage, though part of it will not he due until October, 1862. 3. There is no finding that the mortgaged property could not he divided and sold without prejudice to the parties.” Rone of these assignments is available ; because the points which they involve were not presented to the consideration of the Court as causes for a new trial, or in any other mode known to the law. The judgment is affirmed, with five per cent, damages and costs.