The Mountaineer. [volume] (Great Salt Lake City [Utah]) 1859-1861, 1861-02-16
.Iatal nrms.
DECIsION or THE SUPREME

JOsErfi STOWE, fJatHiW On EyoT,l
LrosAhD SAvaoE, Defendant u Error.
Supreme Court, Utah Territory, Jsuu-
airy term, 1861,
rnnon 10 TiIg DisTRlcr coUIT or CARSON
Il COUNTY.
OYinion ~ Kisnsy, CAef Jasiis
Action 10 recover two thousand three
hundred dollars aIledged 10 be due upon
! paroI contract for the sale Of 0 certain
mining claim.
Plea, general Issue, aud setting up
spcciaI matter By way Of defence, aud
among other things, that the defendant
below (Stowel, In consideration By him
u said mining ground. made, executed,
and delivered 70 the plaintiff . mortgage
upon snid mining ground. I.
The instrument Is then sct out IN the
answer. II contains the following prov
ision: '.This conveyance IS intended as q
mortgsgc 10 secure the payment Of three
thousand dollars within Iortysive days
fsom the date Of this indenture without
interest from the said party q the first
part aud TO the said party Of the second
parl. and these presents shall be void II
aid payment Be made. But IN case de-
fault shall be made IN said payment ast
shore provided, then the party Of the Sec
end part q hereby empowered 70 sell the
above described premises, or any part
Thereof. 1t public auction In thirty days
after due and proper notice, and out Of the
money airing from said sale 10 retain the
said sum ofthFee thousand dollars with the
costs and charges q making said sale, and
oycrplus, II any there be, shall be paid by
the said party making said sale on de-
mand Of the party Of the FIRST part, or his
assigns Defendant, Stowe, then de-
mics that said mortgage has been sued
upon, denies al Indebtedness, denies that
there was any promise to pay said sum Of
three thousand dollars other than that
secured and provided for IN the mortgage.
Judgment was rendered for Savage FOR
twenty three hundred dollars, and Stowe
brings the case to this court upon error
ard relics upon the ruling Of the court as
coutained 10 the bill OF exceptions, for q
reversal Of the Judgment,
by the bill Of exceptions Il appear
that the caiise came on for trial beiors
E. The court on tho complaint and answer
and TINT il was admitted that sale had
taken place under the power contained il
the mortgage, and seen hundred dollar
realized. Plaintiff then called u witness
who testified that defendant agreed "a
pay three thousand dollars for the claim
mentioned ID the complaint, aud went in
Il 10 possession under those terms. Thii
testimony was objected 10 because il wal
oral aud referred TO contract or transac
ton contained In the mortgage, and be
cause there was evidence Of Indebtedness
(if any there was) in the mortgage, which
objection was overruled and the witness
allowed to testify. .., !.
Two questions are presented by till
bill Of exceptions for the decision Of thi
court: 81
First. Had the plaintiff . right to r.
sort 10 his action against the defendah
for the balauce Of the three thOusan,
dollars. after proceeding to sell the Nor
gagged property. # IS. Il. !. &;
Second. could parol evidence be Intro
duced in support Of the original indebted
ness or contract which existed ENTIRELY |
paEol. or was such contract merged IN III
mortgage. . r.. !. I. -: .... =: {. /,
A. the first question Is one Of great in
pertanee, and the decisions upon Il som,
:. What aenaieting. we regret that We al
completed 10 establish rule without Ii
aid af . Sissts text book, and with the a
distance e VT few adjudicated cases.
We are ttte % confess in deciding IN
question. ne are governed by the aathol
dies fsosl Neg Nod. and as these are n,
rentrAdicted by any books before us, y
cheettnlly yield asg preCiOgs opinion v
may have entertaipnd spoR this subject.
the well considered ease a Spencer !
Hartford. ! Wend. 3Si, aks assst say II
eAect Of . toraelesDre II mestEase xiv,
II % secure q bod Aett. has bass Esllv 20
sidered BY Mr.. Justice Story. II Il ID.
"a White; 2 Gallison, l52. sllo Aaa,,
- The CONCLUSION that u ell the eas
there u no difference 0f opiniaa aasal
the lsasaaa ighiEtS whose decisions la
bean considered. tsat at lazy . EoreoloSl
q the RaFtgegs Is no bar 10 AZ aeti
on the attendant b0nA. ..
In the ease Of the 0lobe IasuraI
Company vs. Lansing, 5 Gowen, $50,
4aestion was. whether o foreclosure d
mortgage, and a sale under it operated
On exgnishment Of the debt, and II y
there held that Il was an extinguislnl
no farther than 70 the amount produced
such Gnle, LIT. 2 80
in the ease Of Lansing vs.. Godct
coHcn. $40, 403. the question was I
tented on demurrer. whether foreelos
OF the mortsaged premises without a $,
operated as a cancellation Of the Dc
and It was held il did not without
Aserment. that the mOrtgaged prem
were o. Sufficient value to pay the d,
. There seems to be this distinction in
books that il the mortgage prefers a .
Pc foreclosure Of the mortgaged premi
g.. ne should account for them TO tLe IN
ssgor 20 amount Of the debt, but Il
,l1 aelIs the mortgaged premises, and
produce less than the amount OF the
u Ms balance may berseoyeFed ON the b
Aaa u more than the debt is prod