Cox v. Rees

delivered the opinion of the court.

The defendants and appellants complain that the district judge erred in stating the plaintiff’s claim, and striking the *236balance. Rees, the principal debtor, owed the plaintiff thirty-two hundred and eleven dollars and ninety-six cents, which he. secured by mortgage and the security of his co-defendant. The latter consented that Rees should transfer his mortgage to the Consolidated Association Bank, and release it as to the slaves, the mortgage still remaining on the land, on condition that the sum of seventeen hundred and thirteen dollars , and eighty-two cents, which was due for interest and costs, and was part of the said claim, should be discharged out of the money to be obtained out of the Consolidated Association Bank.

The district judge rendered judgment against both defendants for the amount of the principal debt of fourteen hundred and ninety-eight dollars and fourteen cents, with interest, as stipulated in the mortgage, and for two hundred and one dollars and fifty cents, the balance of an account due by Reee alone to the plaintiff.

The defendant, Rees, has not shown that he is injured by the judgment. His co-defendant argues that he is improperly charged for the balance due by Rees on his private account, ag his-suretyship is confined to the sum stated in the mort-J r gage. He further urges that the balance of, the money rece^ve(^ by the plaintiff from the Consolidated Association Bank, on Rees’s check, after deducting the amount of the interest and costs on the original debt, should have been dnputéd to the principal of the mortgage debt, and not applied to the reduction of the private account of the plaintiff &gtUíl3t xiees.

^ *s c^ear t^iat the defendant, Thomas, is not chargeable for the balance of this account.

payable.. The plaintiff, not being restrained' by any stipulation of either of the defendants as to the money received from the bank, except as to the interest on his claim,, had an undoubted right to apply it to the only debt of Rees, then due and payable. The mortgage debt, which Rees had a greater interest to pay, not being as yet payable, was entitled to no preference over a debt less onerous, which was then

*237It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and, proceeding to give such judgment as in our opinion ought to have been given in the court below, it is ordered, adjudged and decreed, tha,t the plaintiff recover from the defendant, Rees, as principal, and John H. Thomas, as surety, the sum of fourteen hundred and ninety-eight dollars and fourteen cents, with ten per cent, interest per annum, from the 16th of June, 1827, until paid; and it is further ordered, that the plaintiff do recover from the defendant, Rees, the further sum of two hundred and one dollars and fifty-one cents, with interest at five per cent, per annum, from the 7th of October, 1834, until paid; it is farther ordered, that the land specified in the petition as mortgaged for the security of the original debt be first seized and sold to satisfy the said sum of fourteen hundred and ninety-eight dollars and fourteen cents, the plaintiff and appellee paying the costs in this court, and the appellants paying those in the court below.