Chinn v. Penn

SHAW, J.

The defendant, Crenshaw,. appeals from the judgment foreclosing a mortgage executed hy the defendant, Plarry Penn, to Crenshaw, and by Crenshaw indorsed to the plaintiff.

The note secured hy the mortgage contained no obligation except the promise to pay the principal thereof, three thousand five hundred dollars, with interest at seven per cent, payable quarterly, to be compounded if not paid when due, and providing that the whole sum of principal and interest should become due at the option of the holder upon failure to pay any installment of the interest when due. The mortgage declared that it was made to secure, not only the principal and interest of the note, but also all advancements made hy the holder thereof for taxes and assessments which were liens on the property mortgaged, attorneys’ fees for fore

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closing the same, and fees for searching the title preparatory to such foreclosure. Crenshaw sold and assigned the note and mortgage to the plaintiff. The guaranty of the note by Crenshaw was evidenced by an indorsement on the back of the note in these words:

“Pay J. B. Chinn or order, payment guaranteed, protest waived.

“(Signed) G. L. Crenshaw.”

The court below gave judgment of foreclosure for the amount of the note and interest then due, together with two hundred dollars as attorneys’ fees and the amounts advanced by the holder of the note for the payment of taxes and assessments on the property and $15 as a fee for searching the title, amounting in the aggregate to $4,391.03. This sum was made a personal charge against Crenshaw, and the judgment provided that if the property did not sell for enough to pay the same, a judgment for the deficiency should thereupon be entered against Crenshaw. In support of his appeal Crenshaw insists that the guaranty upon which alone he was held runs to the note only, and cannot be held to be a guaranty of payment of the attorneys’ fees and other charges provided for in the mortgage but not in the note.

We think the appellant’s contention must be sustained. It is true that for many purposes a note and mortgage executed as parts of one transaction are to be treated as constituting one contract and are to be considered and construed together.