The record-union., 1891-03-31
SUPREME COURT DECISIONS.

appeal from the Superior Court of Las
sen County-Phll. w. Keyser, Judge.
For appellants, A. l.. Hart and S. Solon
Holl.
For respondents, J. D. Goodwin, D. W.
jerks and w. n. Goodwin.
IN BANK.
ELEANOR MURDOCH, Ad- !
ministratriX, Respondent,
VS.. No. 13, 977.
c. w. CLARKE EFT AL, APP
pellants,
February 4, 1875, Adam Murdoch bor
rowed from the defendant Clarke $500.
and executed to him his promissory note
therefor with interest thereon at the
rate of one and one-fourth per cent. per
month from said 18th day of February,
1875, interest payable semi-annually, and
If not so paid to be added to the principal
and bear a like rate of INTEREST," and at
the same time conveyed to him certain
real property consisting of the Big Val
ley RANCH and the "Beaver Creek
Ranch" ''for the purpose of securing the
payment of said promissory note accord
ing to the terms thereof" March y, 1875,
Clarke conveyed to his co-defendant Cox
an equal one-half of the interest in said
note and security, and on the same day
Murdock borrowed from Clarke and Cox
the further sum of $1,000, for which he
gave them his promissory note for that
and half per cent. per month from date
until paid" At that time it was agreed
between Murdock and the defendants
that the defendants should have and hold
the possession and controp' of the said
real estate, together with certain per-
sonal property until the said promis-
cory notes, with interest thereon. to-
gether with such further amounts or sums
as should be advanced and paid out by
said Clarke and Cox for said Murdock,
ehould be fully paid to them.'' April 10,
lS75 a bill OF sale of said personal prop
erty was executed by Murdoch to
Clarke and Cox sin pursuance of
for the payment OF said several amounts"
The defendants took possession of the
ranches aforesaid on. the 22d day of
March, 1875, and after the execution of
the bill of sale therefor they also took pos
session of certain of the personal property
therein described. After the execution of
said bill of sale the defendants at the re-
quest of Murdoch advanced and paid to
and for his use and benefit other sums of
money, for some of which he gave them
his note with interest at the rate of one
and one-half per cent. per month"; and
for portion of which ''no note or instru-
ment in writing has ever been giVen.'
Murdoch died intestate December Z 1875,
and thereafter his administrators (the re-
spondent herein) brought this action
against the defendants for an accounting
of the money received by them; and in
the prayer TO her complaint asked that
such sum as may be necessary for that
purpose be appropriated to the payment
of the said sums of money borrowed of
the said defendants by the said Adam
Murdoch, with the interest thereon; and
that said applications OF said money to
such payment be made as of the date at
which the said money was received by
the defendants"
The case came on for trial April 80,
1858, and in its decision, rendered Febru-
airy Is, 1889, the court settled the account
of the defendants from the time they took
possession Of said property down to May
/, 1888. In its findings of fact the court
found "that since they have been in the
possession of said property, as aforesaid,
the total expense of defendants in the
necessary and proper management and
care OF said property, properly chargeable
to said estate, has been S34 ,35S 81, and
their receipts from the products of said
ranches, the sales of cattle and leases OF
hay land, .have amounted to SIS, 100 45'
The court also found that the defendants
had, in addition to realizing the foregoing
amounts from said property, made use OF
the property SO held by them for their
own benefit, and that ''the value of the
use and occupation of the said ranches on
the part OF the defendants for their own
=
up to the present time, is 81 900 per an
mum, and that the defendants are properly
.chargeable herewith" 1t also found
that no part of any money received by
the defendants from the sale of stock or
other products of the ranch, or from the
leasing of hay land, has been applied to
the payment of the debts due to them by
the estate Of Adam Murdock;' and, in
conclusion, THAT upon a full accounting
the plaintiff was indebted to the defend
ants on the lst day of May, 1883, in the
sum of S29,752 50 no credit for COM
pounding of interest being allowed de-
1endants." From these findings the
court found as its conclusion Of law that
the plaintiff was entitled to a reconvey-
ance of the property upon the payment to
said Cox and Clarke of the said sum of
SIG, 1852 90, with simple interest OH the
notes held by them against said estate
since the lSt day of May, 1888. and such
further sum as may have been expended
by them for the benefit of said estate since
said date, less such sum as they may have
received from said estate by the sale of
cattle and other products, and the leasing
of hay land, and less a rental of 81 900 per
annum since said date for the use of said
ranches for their own stock ;" and direct
ed decree to be entered accordingly.
Prior to the entry of the decree a supple
mental account, rendered under the fore
going directions, from May l, 1888, was
settled by the court, and in its decree,
after settling said account, the court found
that there was total of S3l 1926 81 due and
owing from the plaintiff to the defendants,
and directed and decreed that upon the
payment by plaintiff to the defendants OF
the said sum of S3l ,926 81, within thirty
days after the entry of this decree, the
defendants shall convey to the estate OF
Adam Murdock, deceased" )" all the said
property then remaining in their hands.
This decree was entered ,July g ISSg and
thereafter the defendants appealed to this
court from the part of the Judgment and
decree rendered in favor of said defend
ants against said plaintiff, and which ad-
judges that no credit for compromising OF
interest be allowed the defendants, and
which adjudges that there was due from
the plaintiff to the defendants at the date
OF filing said decree, S3l, ,926 81 only"
The points presented on behalf of the
appellants are that the court should have
computed interest upon the IS, 500 note by
compromising the same according to its
terms, and that the same rate of compu-
tation should be continued until the entry
of the decree.
l. The rules governing the application
of indefinite payments made by debtor
to his creditor, to whom he owes different
obligations, had their origin. in the civil
law; but in those countries where the
common law prevails the rules of the
civil law have been greatly modified. and
IN some respects entirely repudiated.
Both systems concur in giving to the
debtor the right to designate at the time OF
the payment the debt to which he wishes
the payment applied. Both systems also
hold that if the debtor shall not then
designate the debt to which he wishes the
payment applied, the creditor may make
application of the payment, and that, il
neither make such application, it shall be
made hU tla Nta srN1oc ~,