Ray v. Tatum

McCORMICK, Circuit Judge. The promissory note, the deed, and the bond to reconvey evidence one transaction, must be construed together, and expressly show that the conveyance of the land was to secure the payment of the debt evidenced by the note. It is too plain to admit of argument that the transaction was a borrowing of money, and giving a lien on land to secure the loan. This is a mortgage. The grantee in such a mortgage, having the right to resort to the national courts, can proceed in equity in those courts to foreclose the equity of redemption. The terms of the instruments or of the local statutes may give other remedies, which, if pursued, may exact strict compliance with expressed conditions; but the existence of these different remedies and the express reference to them do not take away or limit the equity jurisdiction of the circuit court over the parties or the subject-matter. Hughes v. Edwards, 9 Wheat. 489; Russell v. Southard, 12 How. 139; Shillaber v. Robinson, 97 U. S. 68. The note in question is in the usual form of commercial paper. A memorandum embodied in it expressly stipulates that the drawers and indorsers severally waive presentment for payment, protest, and notice of protest and nonpayment of this note, ana that if default is made in the payment of any one of the attached coupons, representing semiannual interest, the whole principal shall, at the option of the holder, become due, declaring that time is of the essence of the contract. We find no error in the decree of the circuit court, and it is affirmed.