Yoakam v. White

Belcher, C. On February10, 1891, the defendant White executed to the plaintiffs his promissory note and mortgage to secure payment of the same. The note was for seven thousand eight hundred dollars, and was payable five years after date, “ with interest at the rate of eight per cent per annum from date until paid, interest payable annually, and if not so paid, to be compounded annually, and bear the same rate of interest as the principal.” The mortgage stated that it was given as security for the payment of the note, a copy of which was set out in heec verba, and then contained the following agreement: “And the mortgagor promises to pay said [287]note according to the terms and conditions thereof, and •>..«, in default of the payment of note by its terms, the mortgagees or their assigns may foreclose this mortgage, and may include in such foreclosure a reasonable attorney’s fee, to be fixed by the court.”

After the mortgage was executed, and on the same day, the mortgagor conveyed the mortgaged premises to the defendants Childress and Park, and as a part of the consideration for the conveyance, the grantees covenanted and agreed to pay according to its terms the said mortgage, and to do and perform the covenants and agreements upon the part of the said White in said mortgage mentioned and contained.

On February 13, 1892, the plaintiffs commenced this action to foreclose their mortgage, and they alleged, among other things, that no part of the principal or interest of the note had been paid; that the sum of $624, being one year’s interest upon the note, was due, owing, and unpaid from the defendants to plaintiffs, though demanded by plaintiffs after the same fell due; and that the property described in the mortgage could not be sold in portions without injury to the parties. Wherefore they prayed for a decree of foreclosure for the entire debt evidenced' by the note.

The defendants demurred to the complaint, and their demurrer was overruled. They, however, failed to answer, and their defaults were duly entered.

When the case came on to be heard, the plaintiffs introduced the formal proofs usual in such cases, and moved the court for a decree granting the relief demanded in their complaint. This motion was denied, and they then asked for so much relief as the court would grant upon the pleadings and evidence; but the court refused to grant them any relief, and entered judgment dismissing the action without prejudice. From the judgment so entered the plaintiffs appeal.