Majority
p. 458Jackson, ex dem. Lockwood vs. Turner.
Headnote
A mortgage to secure the payment of a debt in specific articles, where the mortgagee, on default, is authorised to sell the mortgaged premises at public vendue, and to retain from the proceeds of the sale a specified sum, may be foreclosed under the statute.This was an action of ejectment, tried at the Wayne circuit in January, 1830, before the Hon. Daniel Moseley, one of the circuit judges.
The lessor of the plaintiff purchased the premises in question, under a statute foreclosure of a mortgage executed by the defendant. The mortgage was conditioned for the delivery of 50 barrels of salt- at Olean, in the county of Cattaraugus, one half in 1820, and the residue in 1821, and contained a power authorising the mortgagee to sell the mortgaged premises at public vendue, in case default should be made in the payment of the 50 barrels of salt at the times when the same ought to be delivered, and to retain in his hands, out of the monies arising from the sale, the sum of $500, together with all costs and charges, &c. It was proved that the price of salt at the place of delivery, at the times specified in the mortgage, was $10 per barrel. A verdict was taken for the plaintiff, subject to the opinion of this court.
J. A. Spencer, for plaintiff.
E. Livingston, for defendant.
By the Court,
The mortgage in this case, although executed to secure the delivery of specific articles, is equivalent to a mortgage to secure the payment of money. The value of the salt was liquidated, the mortgagee being authorised to retain $500 out of the proceeds of the sale of the mortgaged premises; and therefore, on default being made in complying with the condition of the mortgage, the mortgagee had the right to resort to a statute foreclosure. The foreclosure is valid, and the plaintiff is entitled to judgment.
Judgment for plaintiff.