C.C. Warren, plaintiff in the trial court and defendant in error herein, brought suit in the district court of Creek county against Harry E. Anderson and Grace Ripley Anderson, as defendants, on their promissory note for the principal sum of $308 and for the foreclosure of a real estate mortgage given to secure the payment of said note. Judgment was rendered on the note and for foreclosure of the mortgage.
Following rendition of this judgment plaintiff filed a "Release of judgment lien on Certain Real Property," said real property being the identical property covered in the previously mentioned mortgage. Thereafter plaintiff filed a praecipe for execution against certain personal property of the defendants which was in no wise covered by the mortgage. General execution was issued and levy made upon the personal property of the defendants. Defendants then moved to quash the execution on purely legal grounds that it did not conform to the terms of the judgment and was prematurely issued. The motion was overruled.
Notice of appeal was given after a supplemental motion to quash the execution, with objections to confirmation of the sheriff's sale, was overruled. The defendants have appealed from such order, appearing herein as plaintiffs in error. The parties will be referred to by their trial court designation.
The defendants contend that the executions in question and the proceedings thereunder were unauthorized because of failure to conform to the terms of the judgment as required by 12 O.S. 1941 § 903[12-903], which provides:
"In special cases not hereinbefore provided *Page 252 for, the execution shall conform to the judgment or order of the court. When a judgment for any specific amount, and also for the sale of specific real or personal property, shall have been rendered, and an amount sufficient to satisfy the amount of the debt or damages and costs, be not made from the sale of property specified, an execution may issue for the balance, as in other cases."
In construing this statute, it is contended this court has consistently held that where a judgment is rendered for the foreclosure of a mortgage or other lien, no general execution can lawfully issue for the enforcement of such judgment prior to the sale of the mortgaged lands. As a typical example, Riddle v. Gamble, 99 Okla. 161, 226 P; 106, is cited. An examination of this case discloses that plaintiff brought suit on two promissory notes and to foreclose a mortgage, given as security, on 40 acres of land. Judgment was rendered for plaintiff, ordering foreclosure with appraisement. A general execution was issued and the sheriff levied upon 160 acres, including the 40 acres covered by the mortgage. Appraisement was made of the total 160 acres, sale consummated and confirmed. Defendant raised objections to the sale and confirmation and on appeal this court held that only after special execution was issued, property appraised and sold, with a revelation of what was yet due on the judgment, could a general execution be rightfully issued.
Another case relied upon is Aycock v. Harriman et ux.,185 Okla. 590, 95 P.2d 110. In that case, plaintiff, after obtaining judgment on a promissory note and for foreclosure of a mortgage, caused special execution against the mortgaged real estate to issue. But before the sale was confirmed, general execution was issued. We held that general execution should not have been issued until the amount of the deficiency was determined by a sale of the property charged specially with the payment of the debt.
Defendants also call our attention to Paschal Inv. Co. v. Atwater, 174 Okla. 356, 50 P.2d 357, wherein suit was brought on a promissory note and to foreclose a real estate mortgage. In addition to several defendants, one Brodie T. Atwater was named as claiming some right in the mortgaged premises. Atwater filed a cross-petition against his codefendants (makers of the note and mortgage) alleging that they had delivered to him a mineral deed warranting their title for the sum of $1.400. For the breach of this warranty Atwater claimed damages in the sum of $1,400. Personal default judgment was rendered against the makers of the note and mortgage and decree entered for its foreclosure. Cross-petitioner was also given judgment. Before sale of the mortgaged real estate a general execution on the Atwater judgment was issued and property of the defendants was levied upon and sold. Plaintiff objected to confirmation of the sale. Two rulings pertinent to our present case were rendered on appeal. These were: (1) Plaintiff was not entitled to a general execution until deficiency judgment was determined, the determination being made by sale of the specific property under special execution., (2) As the cross-petitioner had no lien of any kind or character on any specific real or personal property, he was entitled to a general execution against the property of the judgment debtors.
It is pertinent to note at this point that in each of these three cases relied on by defendants, there is one significant fact common to all. In each, the judgment creditor was still looking to his security to aid in satisfying his judgment. Of course, this was a salient feature of important weight when the ultimate ruling was reached. We find no fault with the reasoning in the above cited cases.
As has been previously mentioned in this opinion, the plaintiff, before general execution was issued, filed his release of judgment lien on the mortgaged property. This release discharged the lien on the property so released for *Page 253 all purposes and forever. In so doing he let it be known that he was not relying, and would not rely, upon the mortgaged realty to satisfy his claim. He disavowed any intention of asserting a particular charge against certain specific property. There was an intention to abandon or relinquish any claim against the specific security and this intent was manifest by the filing of the release. And in carrying out this intent, when the levy under general execution was made, the subject matter of the mortgage was not even considered. This is the distinguishable feature in the case at bar from the cases cited by defendants.
An exhaustive research did not reveal any case containing a fact situation identical with the one under consideration. However, certain rules concerning the law of mortgages were frequently encountered, as, the debt is the primary obligation between the parties, and the note is the primary evidence of that debt and the holder of the note and mortgage is not required first to foreclose the mortgage but may bring his action on the note alone. Jones on Mortgages, vol. III (8th Ed.) sec. 1572. And in 41 C. J. 654, it is said:
"Unless it is otherwise provided by statute, where a mortgage is given to secure the payment of . . . a promissory note, the creditor may pursue his remedy either on the mortgage at on the evidence of the debt, or on both concurrently. He is not required to foreclose the mortgage before resorting to his action on the note . . . but, unless prevented by an agreement, he may sue on the latter at law without regard to the mortgage, . . ."
To the same effect is 19 R.C.L. 509, sec. 305, wherein it is said:
"As a general rule, the taking of collateral security for the payment of a debt does not afford any implication that the creditor is to look to it only or primarily for the payment of the debt. The obligation of the debtor to respond in his person and property is the same as if no security had been given. This is the settled rule at law. Therefore, a creditor holding a note secured by a mortgage may ignore his security and bring an action on the note. The promise to pay, as evidenced by a promissory note, is one distinct agreement, and, if couched in proper terms, is negotiable, while the pledge of real estate to secure that promise as evidenced by a mortgage is another distinct agreement, which is not intended to affect in the least the promise to pay, but only to provide a remedy for the failure of performance."
In accord with the above views, this court has held that the mortgagee may proceed against the maker of the note or directly against the mortgaged property. Peters v. Lindley, 88 Okla. 32,211 P. 409.
Under the facts of the present case, we are not concerned with the question of whether or not an execution for the sale of property pursuant to a decree of foreclosure of a real estate mortgage is special and must conform to the order of the court. The question is whether the judgment should, at all times after the release hereinbefore referred to, be treated as a judgment for the foreclosure of a real estate mortgage, or as a personal judgment upon which a general execution might issue. That is, can the mortgagee elect to sue for a personal judgment on the note and also for the foreclosure of the mortgaged property securing the note, and then, after having obtained the judgment both on the note and for such foreclosure, release his lien on the mortgaged property and levy a general execution against other property of the mortgagor?
The mortgagor in the present case, so far as shown by the record, was in no worse position after the mortgage lien had been released than he would have been in had the mortgagee sued only for a personal judgment on the note. The foreclosure of a mortgage is of equitable cognizance, and we are unable to see where, under the pleadings and facts in this case, the judgment of the trial court overruling defendants' motion to quash the general execution resulted in any inequity to the defendants *Page 254 or deprived them of any rights in equity.
Judgment affirmed.
GIBSON, C.J., HURST, V.C.J., and BAYLESS and WELCH, JJ., concur. OSBORN, CORN, and ARNOLD, JJ., dissent.