The jury have passed upon the only question that there was in this case—the bona fides of the mortgage—upon which they have found for the plaintiff; and there being ample evidence to sustain their finding, it cannot be reviewed.
One of the conditions of the mortgage was that if the mortgagors should, at any time, before the day of payment of the mortgage, suffer any attachment or any other process against property to be issued against them, that then the sum of money mentioned in the mortgage should become instantly due and payable; and that the plaintiff was then authorized and empowered to take and carry away the property mortgaged; to sell and dispose of it; and out of the money arising from the sale, to retain and pay the amount mentioned in the mortgage, and all charges, rendering the surplus, if any, to the mortgagors. When the attachment, therefore, was issued against the mortgagors, the sum named in the mortgage became due, and the plaintiff’s right to the possession of the property was thereupon absolute (Champ
When the property was demanded of the sheriff on behalf of the plaintiff he said he should hold it, until the plaintiffs in the attachment, who are the defendants in this suit, gave a bond of indemnity, which they did. One of them, when the plaintiff’s agent offered to'give security if the wagon were given up, said he would like $150, to take the place of the wagon, and that the defendants should have only the same lien upon the $150 that they had on the wagon; the $150, I infer, being equal to the value of the property and charges, as the claim in the attachment was but for $89.09 ; and as it seems by the plaintiff’s letter, which accompanied the delivery of the check to the sheriff, this was the arrangement that was carried out. It appears by the statement in the letter, that the check was to be substituted for the
The plaintiff was entitled to recover. The check was not given as a voluntary payment. The plaintiff was anxious and offered to give the indemnitors security, in place of it, and they said that they would like $150, to take the place of the wagon; and with this understanding, the check was given, and the property was delivered to the plaintiff. They agreed that they were only to have the same lien upon the $150 that they had on the wagon; and the plaintiff accordingly brought this suit enabling them, if they had any lien upon the $150, to establish it, which they did not.
The defendants have not, in their points, referred to any of the exceptions taken; from which it may be inferred that they do not rely upon any one of them, as ground for a new trial; and it is our opinion that they afford none.
Allen, J., concurred.
Judgment affirmed.