Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-03-04

liant asserts to have been u1conscionable
on Nelson's part, to consider the instru-
nient as b conditional conveyance of the
stock, and not "a mortgage. But the court
has no power over the transaction to
make it other than, or different from,
what the parties themselves made 1t. I re
it is mortgage, ii is the duty of the
court to declare it q mortgage; and if 1t
is a mortgage, it has, perforce, all the in
cidents and privileges of q mortgage; and
that it is mortgage there is no room for
question. The principal engagement is
contained in the note, which creates a
debt rs soon as earnings or dividends are
received. The other instrument is sec
ondary, and is intended as security for
the payment Of the note. The appellee
himself, in his proceedings before the
civil commission, treats his claim as q
debt and the instrument of security as
mortgage. es5oY q * =
''He calls it mortgage; and the doc
trine of once a mortgage always mort
gage applies TO it. Then, being mort
gage, whether of real or personal proper
ty, the mortgagor has an equity of re-
redemption, unless it had been extin-
guished in some legal way. The great
question of the cause is whether the
equity of redemption has been extin-
guished. +. ~ $50 -.s....,.. Z &
1t is unnecessary TO decide whether
the mortgage was one of real or personal
estate or whether il was legal or only an
equitable mortgage. As no attempt has
been made to cut off the equity of re-
demption in any other manner than by
legal proceedings, the question is reduced
to the simple one, whether the legal pro-
ceedings are valid and effectual for the
purpose.
SIT is objected that the court or civil
commission was not legally established;
but it IS not necessary to determine that
question, as the proceedings themselves
are fatally defective. The defendants in
the proceedings (the appellees here) were
within the Confederate lines at the time,
and it was unlawful for them to cross
those lines. Two of them had been ex-
PEELED the Union lines by military author
ity, and were not permitted to return.
The other, Benjamin May, had never left
| the Confederate lines. A notice directed
to them and published in newspaper was
a mere idle form. They could not law
fully see nor obey it. AS to them, the
proceedings were wholly void and nope
rative.
"Ihis leaves the equity of redemption
in the mortgaged property unextinguished,
and it is therefore the right of the appel
lees to redeem it.
''In the opinion of the court the whole
principal and interest of the notes have
become due and payable, and a redemp-
ton and transfer of the stock should be
| decreed only on condition of the pay
ment of principal and interest in full,
after giving to the sppellees credit for the
sums received by the appellant, legal in.
terest on each side to be allowed.
'The decree of the Circuit Court,
therefore, will be so far modified that in
stead of requiring the appellant to forth
with transfer the stock, as directed in the
decree, he be decreed to transfer it t. the
defendants, Miriam w. Nelson and Ben
jamin May, respectively, as therein d.
rected, upon payment by the sppellees to
| the appellant of the amount which shall
be found due him on the said two poter,
after taking and stating the account in the
said decree afterwards directed; neither
party TO recover costs of the other in tn {
appeal"