Mortimer v. McKay , 1 Miss. Dec. 585 ( 1883 )

Opinion.

Cooper, J.,

delivered the opinion of the court.

All the evidence in relation to satisfaction of the deed of trust, upon the existence of which the plaintiff’s right to recover depends, tends to show payment of the entire debt and a consequent discharge of the incumbrance.

Mr. and Mrs. Cameron owed Lake nothing at the time of the execution of note which was given as the representative of a debt to be thereafter incurred and which was to arise from advances to be made by Lake. Lake made no advances whatever, all were made by Lake & Marshall, but under an agreement between the members of the firm that the debt was to be owned by Lake alone. Something over $750 was advanced instead of the sum originally agreed on ($400), eight bales of cotton, a part of the mortgaged property, were shipped to Lake & Marshall, and sold by them, and the proceeds credited on the account. The account was the whole and only debt due or contracted. Disconnected from the account, the note had no validity because nothing would be due on it. The account, to the amount o£ the note, and the note itself represented one and the same debt. The appropriation of the proceeds of the cotton to the account operated ipso facto as payment of the first items thereof, and these items composed the debt represented by the note. Payment of these was payment of the note.

The appropriation made by the creditors was the same which the law have made in the absence of one of the parties. The appropriation of the payment having been made, and the mortgage debt to that extent extinguished, it was not within the power of Mr. Cameron, if he had desired and intended so to do, to direct it to be withdrawn and appropriated to the last items of the account without the approval of Mrs. Cameron, who was the' owner of the mortgaged property and the real debtor. This is conclusive of the case without regard to any of the other questions presented.

The judgment is affirmed.