Lash v. Edgerton

Berry, J. By the Court The referee before whom this action was tried finds as matters' of fact: ¿that on and prior to the 31st day of October, 1856, S.SP.^Folsom was owner in fee simple of certain lands, and on said 31st day of October executed and delivered to G. H. Edgerton a mortgage thereon, “ conditioned that if the said Simeon P. Folsom should pay — 214 — or cause to be paid to said Gurdon H". Edgerton, his heirs, executors, administrators or assigns, the sum of two thou-. sand two hundred and eighty dollars, according to the conditions of two promissory notes, one for the sum of twelve hundred and eighty dollars, due on the 11th day of August, A.D. 1857, and one for the sum of one thousand dollars, due in twenty-one and one-third months from the date thereof, both' of said notes bearing even date with said mortgage, then the said mortgage to be null and void, otherwise to be of full force and effect,” and that said mortgage was duly recorded; “that on or about the said 31st day of October, A. D. 1856, in consideration that the said 'Gurdon II. Edgerton had loaned to the said Simeon P. Folsom the sum of two thousand dollars, and to secure such loan the said Simeon P. Eolsom made, executed and delivered to the said Gurdon Ii. Edgerton his two certain promissory notes in writing, bearing date of that day; by the terms of one of said notes the said Simeon P. Eolsom promised to pay to the order of the said Gurdon II. Edgerton, on the 11th day of August, 1857, the sum of'twelve hundred and eighty dollars; and by the terms of the other of said notes he did promise to pay to the order of said Gurdon II. Edgerton, twenty-one and one-third months from the date thereof, the sum of one thousand dollars, with interest at the rate of three per cent, per month, payable annually, and with interest after maturity at the rate of five per cent, a month' until paid; which said two promissory notes are the same notes referred to in said mortgage, and to secure the payment of which the said mortgage was so made and executed, but in which said mortgage the said notes were not described further or otherwise than as hereinbefore set forth in the condition of said mortgage, and it did not appear from said mortgage that said notes or either of them were given with interest: — 215 — that to further secure the notes last aforesaid, at the time of the aforesaid loan, and of the giving of the said notes and mortgage, and as part of the same transaction, the said Simeon P. Folsom turned over to said Gurdon JI. Edgerton two certain promissory notes, bearing date the 11th day of August, A. D. 1856, made by Isaac A. Banker and ¥m. E. Beal, and one Ezra Banker, as surety, payable to the order of said Simeon P. Folsom, the one. due August 11, 1857, on which there was due, at its maturity, by the terms thereof, for principal and interest, the sum of twelve hundred and eighty dollars, and the other due and payable the 11th day of August, A. D. 1858, for the sum of one thousand dollars, with interest thereon, from its date until paid, at one per cent, per month ; that on the 11th day of August, 1857, the said Banker and Beal note, maturing as aforesaid on that day, was paid, and the proceeds thereof were duly applied, by the said Gurdon H. Edgerton, in payment of the said twelve hundred and eighty dollar note, described as aforesaid in the said mortgage, and paid the same in full; that afterwards, and on or about the 31st day of August, A.B. 1858, the said Isaac A. Banker duly confessed a judgment in this court, in favor of the said Simeon P. Folsom, upon the said Banker and Beal note, for oue thousand dollars, and interest, as aforesaid, maturing, as aforesaid, on the 11th day of August, A.D. 1858, and the said judgment was thereupon duly rendered and docketed in this court, in favor of said Simeon P. Folsom, and against said Isaac A. Banker, on said 31st day of August, 1858, for the sum of twelve hundred and fifty-five and 11-100 dollars, and which said judgment, so rendered and docketed, ivas then and there duly assigned and transferred by said Simeon P. Folsom to said Gurdon H. Edgerton, to stand as collateral security, in the place and stead of the note upon which the same had been so rendered, — 216 — for the payment of the balance due on the aforesaid mortgage indebtedness, and not otherwise: that afterwards an execution was duly issued on the aforesaid judgment, and there was made thereon, over and above the costs and expenses of said collection, the sum of eleven hundred and three and 80-100 dollars, which sum was duly paid over to the said Gurdon II. Edgerton, through his attorneys, on the 6th day of November, A. D. 1858; and that after-wards and on or about the day and year last aforesaid, the said Isaac A. Banker paid to said Gurdon II. Edgerton the further sum of ninety-six 20-100 dollars, on the aforesaid judgment, making the total sum paid thereon, on or about the date last aforesaid, to said Gurdon II. Edgerton, of twelve hundred dollars; that said writ of execution was returned to this Oourt by the officer to whom the same was directed and issued, with no other or further return thereon than the statement of the collection under a levy and sale of certain personal property, of the aforesaid sum of eleven hundred and three and 80-100 dollars, besides his costs and and fees, and the payment thereof to the said Gurdon II. Edgerton as aforesaid; that afterwards G. II. Edgerton died, having appointed defendants his executors, who qualified and proceeded to act as such; that on the 25th of February, 1861, the said mortgage indebtedness being unpaid except as already stated, the defendants did foreclose the mortgage by advertisement, claiming in the notice of sale that there remained due and unpaid on the mortgage six hundred and thirty-nine dollars ; that the premises were struck off to defendants for six hundred and fifty dollars, and the usual certificate executed and recorded, and that no redemption has ever been made; that on the 25th day of October, 1858, S. P. Folsom executed and delivered to plaintiff a mortgage on the same premises to se" cure a bond for thirteen hundred dollars and interest, which — 217 — mortgage was duly recorded and foreclosed in the District Court of the United States, and in pursuance of the decree rendered, a sale was had, and a master’s deed executed and delivered to the plaintiff; which sale was duly confirmed.” ' It will be seen that the referee finds that the §1,280 note secured by the mortgage to Gr. II. Edgerton was paid at maturity. The questions raised in this case relate solely to the second note. It is found that the $1,000 note made by Banker was “ turned over ” to G-. Ii. Edgerton “ to further securre the note ” given by Folsom to Edgerton, that is, as security additional to the mortgage, and that this was done at the time of the loan by Edgerton to Folsom, and of the giving of the said note and mortgage, and as part of the same transaction. It is further found that the judgment recovered on the $1,000 note given by Banker was duly assigned and transferred to G-. II, Edgerton “ to stand as collateral security in the place and stead of the note upon which the same had been so rendered, for the payment of the balance due on the aforesaid mortgage indebtedness, and not otherwise.” As between Folsom and Edgerton, the mortgage secured the principal of the $1,000 note and interest thereon, according to the terms thereof, till its maturity, and afterward at seven per cent, per annum. Whitaker vs. Fuller, 5 Minn., 515. As between them such principal and interest were the mortgage indebtedness. Lash, the plaintiff, who claims as a second incumbrancer, insists that he had no notice of the amount of the indebtedness secured by Edgerton’s mortgage except what appeared upon the record, which makes no express mention of interest. But this state of facts does not show any equities which give him a right to insist that the proceeds of the judgment spoken of should be applied first to the payment of the principal of the $1,000 note. We see no reason why, upon this finding, this judgment — 218 — did not stand upon precisely the same footing as the note upon which it was rendered, and that - note was turned over to Edgerton, not to secure what upon the face of the mortgage or the record thereof might appear to be due to Edger-ton, as against a subsequent incumbrancer, but to secure the oiotes mentioned in the mortgage, whatever they might be, and without reference to the description of them found in the mortgage. This being the case, it was proper to apply the proceeds of the judgment to the payment pro tanto of the $1,000 note given by Eolsom to Edgerton, which remained unpaid. It does not appear that Edgerton or Eolsom made any specific application of the proceeds of the judgment either to payment of the principal or interest of the $1,000 note last mentioned. When a payment made by a debtor is not applied to the liquidation of any particular indebtedness by the debtor or the creditor, the law applies it; (Solomon vs. Dreschler, 4 Minn., 281); and when the indebtedness consists of a principal and the interest thereon, the law applies, the payment first to satisfy the interest. , Connecticut vs. Jackson, 1 J. C. R., 13 ; 1 Am. Lea. Ca., 140, and notes ; 2 Gr. Ev., Secs. 530, 533; 2 Parsons on Contracts, 5th Ed., 635. Making the application in that way in this case, there remained due upon the mortgage as much as the amount claimed in the defendant’s notice of foreclosure; and as no questkm is made about the regularity'of their foreclosure, and there was no redemption, their title, so far as anything appears in this case, is good, and the plaintiff cannot have the relief which he seeks. The doctrine is supported by a great weight of authority, that when a debtor makes a general payment, and his indebtedness is in part secured, and in part unsecured, the law, in the absence of any specific appropriation by the parties, will apply the payment first to the liquidation of the unsecured — 219 — indebtedness, Upham vs. Lefavour, 11 Met., 184 2 Parsons on Contracts, 5th Ed., 631, and note y; Field vs. Holland, 6 Cranch, 8 ; 1 Am. Lea. Ca., 126, and notes ; 2 Gr. Ev., Sec. 533. If, as tlie plaintiff contends, the mortgage to Edgerton secured only tlie principal of tbe notes, leaving tlie interest unsecured, then it would seem that this rule applied to. this case would also appropriate the proceeds of the judgment before referred to, to satisfy the interest on these notes first. The judgment is reversed.