Moore v. Russell

McFARLAND, J.

This is an appeal by defendant Zadock H. Russell, administrator, from a judgment rendered in plaintiff’s favor upon a certain note and mortgage for eight hundred dollars and interest.

No defense is made on the real merits of the case,—that is, it is not pretended that the mortgage was not given to secure a just debt. The attacks on the judgment are based on certain alleged irregularities and failures to comply with statutory provisions; and it may be said that these attacks seem to have been invited by a spirit of carelessness, which accompanied most of respondent’s acts in the premises, from and including the drafting of the mortgage to the entry of the judgment. We think, however, that none of appellant’s positions are really tenable, except as to the form of a certain part of the judgment.

On November 18, 1898, the note and mortgage in question were made and executed to plaintiff by William Russell, since deceased, and his wife, Ruth M. Russell. The principal of the note was eight hundred dollars, payable seventeen months after date, with interest at eleven per cent per annum, payable annually. There was a provision in the note that if any interest should not be paid' when due, “the whole amount of principal and interest shall thereafter be due and payable, at the option of the holder of said note, to be exercised at any time within ninety days after any such default.” William Russell died on the fourth day of July, 1899, and the defendant Zadock became his administrator on August 14, 1899. The first interest became due on November 18, 1899, and was not paid, and no principal or interest had been paid when the action was commenced. On January 18,1900, plaintiff presented his claim on the note and mortgage to the administrator, who rejected the same. The action was commenced on June 12, 1900, —within two months after the note, on its face, matured, but not within three months after the presentation of the claim.

1. The note and mortgage were made at the same time. It is declared on the face of the mortgage that it is given “ as se

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curity for the payment to said mortgagee of the sum of eight hundred dollars, in gold coin of the United States, with interest thereon according to the terms of a certain promissory note in words and figures following, to wit.” Then follows what is an exact copy of the note, except in these two particulars: 1. The word “administrator” is inserted after the name of the payee, “Moore”; and 2. At the end of the copy the name of “ Ruth M. Russell ” is omitted. Appellant contends that these two mistakes in the copy are fatal to the validity of the mortgage as a security for the note sued on; but the point is not maintainable. He speaks in his briefs of the “ first ” and the “ second” note; but there is nothing in the record to warrant a pretense that there were two notes. The question here is as to the identity of the debt and note secured; and it is quite apparent, notwithstanding the two slight mistakes in the copy, that the debt of eight hundred dollars and the note sued on are the debt and the note referred to in the mortgage.