The Daily clarion. [volume] (Jackson, Miss.) 1866-1888, 1867-04-16

had the right to refuse acceptance OF IT.
she rejected il the transaction was at an emu
and it ceased to have any force or eiiec1 !" Ia
ever. and in that event, 1t was not conpo-
tent for her TO hold and treat II as secuIit.
for any part of the money EN- braeed IN tue
arran yeruent with Adams. unless he consent
ed 20 the modification. Her rejection OF II,
as a full compliance with the agreement
with Adams, absolyed him from all ohlisd
ton under ii; for he had the right then 20
consderit al an end and 1t would have req ui.-
ed an express consent on his part, after sucA
rejection, TO modify its effect, and to rendee
il a partial compliance with the agreement
and a partial security for the money intend
ed to be loaned to him.
But there is no evidence whatever, IN the
record, of any such consent on his part anu
hence, il follows that the mortgage must De
considered as at an end
There is, therefore, no mortgage in exist
ence TO stand as a security Tor the money
advanced; and. there being no mortgage, the
bill and letter of credit constitute the oniy
security which the Bank has for the loan oil
the SI5 GEO. and that security stands IN iofce'
because of the terms of the contract, IL was
to constitute the security OF the BANK IL
Adams. should fail to execute mortgage
according to the agreement
II the bin of exchange and letter of credit
had not been given, and the matter had
stood merely upon the agreement 10 execute
a mortgage, which Adams had failed TO per
form in conformity to the agreement a
Court of Equity might have helG the lnsuI-
ticiens mortgage rendered, TO De security
for the money advanced. but thls rule can
not applv here, because the mortgage was
neversaceeuted: to any extent, by the Bank,
and no notice was given TO Adams that II
was, or would be partially accepted anu on
the contrary, the steps taken by the Bans
clearly indicate, that il was wholly rejected,
and the effort was to have 1t corrected ana
amended, so as to be fully IN accordance
with the agreement. Inc IegaI eHeo' %
this cause. is to remit the Bank 10 the
securjtv of the bill of exchange, which was
intended to constitute the security until q
due mortgage should be executed; when
having failed, the Bank 1t bound by the
security which she took and which was 20
operate as her security IN that contingency
1t is insisted, in behalf of the defendant IN
error. that. inasmuch as the $4,000 was
advanced with the understanding, between
the parties that that sum was to be EN-
braced by the mortgage, when executed
and which the plaintiff IN error WfongIuliy
failed to execute in compliance with the
arreement-the mortgage as executed should
he enforced And the decree sustained, ON tue
ground that the Bank was entitled to a
specific performance OF the contract, to exc
! cute the mortgage. But to this view there
are several insupeTable objections.
LIST The bill is not framed with any aspect
/ of specific performance of an uneNecuteo
/ contract, or the reformation of an lnstru-
ment not executed according to the contract
/ of the parties.
/ ID. 1t seeks the enforcement of the mort
/ gage, as validly made, and available to the
! Bank. and as etfectual in partial pursuance
+ of the agreement. and TO the extent that
property was conveyed by it.
! 3rd If the bill does not seek an intorce-
ment Of the mort gage as made in pursuance
/ of the contract and as a security Tor the
/ debt to the amount of the money advanced
there does not appear to be any contract to
convey any specific property by mortgage
nor that any specific property was contem
4 plated by the parties; and of course the
court could not decree a mortgage upon any
specific property. For there does not ap'
peaTtO have been any agreement that any
! specific property should be conveyed by the
! mortgage to be executed; and in the alb
sence of any such agreement, the court could
not decree specific performance upon the
ground Ofthe right of the Bank, to have a
mortgage upon the original uneXecuted
/ agreement OF Adams.
/ 1t follows, from these views, that the de
I cree extending the mortgage to the bill o.
| exchange, and ordering a foreclosure to the
amount thereby secured, is erroneous and
/ the decree must he reversed and the bill
/ dismissed.