Farmers and Merchants Bank v. Copsey

[288]

THE COURT.

Defendants appeal from the judgment and order denying their motion for a new trial.

The facts are substantially as follows: In October, 1892, one William H. Beckman conveyed certain real estate to defendant Fred Copsey. At the time of the conveyance, the premises were encumbered by a mortgage given by said William H. Beckman to one Henry Beckman to secure a promissory note for the sum of $4,357, and, by the terms of the conveyance, the said Fred Copsey assumed and agreed to pay the said note and mortgage so made by said William H. to Henry Beckman.

Prior to June 17, 1895, the said Henry Beckman had become indebted to plaintiff, and had assigned the said note and mortgage to plaintiff as collateral for such indebtedness. On the last-named date theré remained due and unpaid upon the said note and mortgage the sum of $3,250, and defendants (who are husband and wife), in order to pay the same, agreed to and did execute their note and mortgage upon the same premises, to plaintiff, for the said sum of $3,250, and also assigned and deposited the Beckman note and mortgage as collateral to plaintiff for their said note. The Beckman note so secured by mortgage had been indorsed and assigned by Henry Beckman. In the written assignment made by defendants to plaintiff of the Beckman note and mortgage, the plaintiff was authorized at any time, with or without notice, at public or private sale, to sell and dispose of the Beckman note and mortgage so held by it as collateral. It was provided in the assignment that in case of a sale of the Beckman note and mortgage by plaintiff, the balance, after paying costs and expenses, and the amount due by defendants on their note, should be paid to defendants. Defendants also agreed, in the assignment, that they would pay to plaintiff “ whatever balance may be due after sale of securities and application of proceeds.”

Plaintiff commenced foreclosure proceedings on the Beckman mortgage in August, 1896, against William H. Beckman, defendant Fred Copsey, and others, and procured a decree of foreclosure in due course.

After sale of the premises under the decree and order of sale, and the application of the proceeds, there remained a deficiency, for which judgment was docketed against defendant Fred