McCullum v. Turpie

Elliott, J. The only question-presented in the ease is, as to the correctness of the finding- and judgment. of the court, in requiring the part of the mortgaged premises sold by Shidler to McCullum to be first sold for- eight hundred dollars and its interest, of the-note secured by the mortgage to Mrs. Imes. Where lands incumbered1 by a mortgage are sold by the mortgagor in parcels, at different times, and paid for by the purchasers, the equitable-rule is, that the several parcels are to be made liable to the payment of the mortgage in the inverse order of their' sale, so that the p.areel last sold is first made liable.. But here McCullum had paid nothing— except a year’s interest, which was applied to the mortgage debt—omtlie parcel purchased by him, and, though his note to-Shidler did not become due until a few days after the [149] maturity of the note of the latter to Mrs. Imes, the evidence shows that the amount of his note and its interest was to be applied, to that extent, to the payment of the latter, at maturity. In other words, the consideration to be paid by McCullum for the part of the land purchased by him was the payment of eight hundred dollars and the interest thereon, at maturity, of the note given by Shidler to Mrs. Imes. S. E. Perkins, L. Jordan, and S. E. Perkins, Jr., for appellant. E. Turpie, D. P. Baldwin, and E. Ehghes, for appellee.' The giving of the note to Shidler, with its attending circumstances, can scarcely be said to be inconsistent with such an intention. The note expressly provides that payment may be made at any time before maturity, and that it is not to be assigned without the consent of the maker. And then, by agreement of the parties, it was deposited with the attorney of Mrs. Imes, with directions to apply any payment made thereon to Shidler’s note to Mrs. Imes. Keefer and Bale purchased with a knowledge of the previous sale to McCullum, and with the assurance that he was to pay eight hundred dollars of the mortgage debt. Under the facts of the ease, we think the decree of the court is clearly correct. Judgment affirmed, with costs.