62 Minn. 377 | Minn. | 1895
Action on a supersedeas bond executed by defendant Capehart as principal and his codefendants as sureties upon an appeal to this court from a judgment in favor of plaintiff and against defendant Capehart and one Schwartz, and which was affirmed in Maxwell v. Schwartz, 55 Minn. 414, 57 N. W. 141.
The facts are that Schwartz executed to plaintiff a promissory note, and also, as security for its payment, a mortgage on chattel property. At the same time, and as part of the same transaction, and before the delivery of the note, and for the purpose of giving it credit, Cape-hart indorsed thereon: “For value received I hereby guaranty the payment of the within note upon assignment to me of the mortgage accompanying the same” (meaning the Schwartz mortgage). This is the note and guaranty upon which the judgment referred to was recovered. After the maturity of the note, and before action thereon, the plaintiff tendered Capehart an assignment of the mortgage, and demanded payment of the note, and from that time until the foreclosure of the mortgage, as hereinafter stated, the plaintiff continued ready and willing to give him such assignment on condition that he pay the note; but Capehart refused, and continued to refuse, to accept the assignment or pay the note. After plaintiff obtained judgment on the note, she in good faith, and for the purpose of preserving the security, took possession of the mortgaged property, and sold it, pursuant to a power of sale in the mortgage, and the proceeds, less the reasonable costs and expenses of sale, have been credited on the judgment.
Order affirmed.