By the Court. Error to the District Court of Ramsey County. One Isaac A. Banker, on the 22d day of January, 1857, executed a mortgage upon certain property in said county, to secure a note of $2,000, bearing even date with said mortgage, and due one year from date, with interest at the rate of two and a half per cent, per month until maturity, and five per cent, per month after maturity till paid. The first six months interest, ($300) was paid on the note. The premises, after the giving and recording of the mortgage, were sold to the Plaintiff in Error. The mortgage was afterwards foreclosed by advertisement under the Statute, and on the third of December, 1859, the premises were bid in at the sale by the mortgagee, for the sum of $3,758. This sum was less than the amount due on the note, computing the interest at five per cent., but computing the interest at seven per cent., exceeded the amount due, by some eleven hundred and twenty-eight dollars, as claimed by the Plaintiff in error. To recover this alleged surplus this action was brought. The action was dis*524missed by tbe coiirt below on the ground that tbe complaint showed no cause of action.
The questions involved in this case were fully discussed and adjudicated by this court in the case of Whitney vs. Bidwell, 4 Minn. p. 76. As the majority of this court still believe the views there expressed, correct, it is unnecessary here to reconsider them. As it seems however to be claimed, that the rule there laid down imposes a hardship on the mortgagor, it is proper in this connection to correct such an erroneous idea. The counsel for the Plaintiff in error urges on this point, that “ if the property sell for less than the- amount due, the unfortunate debtor must pay the balance; and is he not truly unfortunate, if, when it sells for more, he has no interest whatever in the overplus ?”
It might be a sufficient answer to the position of the counsel to say, that the court in its interpretation of the law, cannot ordinarily be influenced by the consideration of what its effect must be as applied to particular cases. But the premises assumed by the counsel are deemed to be incorrect, as according to the views expressed by the court in Whitney vs. Bidwell, above referred to, there is no overplus or surplus, on the sale of the mortgaged premises, in the case at bar. The mortgagee has received upon his note nothing more than he was authorized to by the maker, by his contract, a contract not in itself illegal, and which the mortgagee was justified in supposing the maker intended to fulfill, from the fact of his standing by and making no objection when the claim (by the legal notice) is directly made upon him, or brought to his attention. But if the party wishes relief from the contract he has entered into, this court has never intimated that he may not obtain it, by taking the proper steps to procure it, -but directly the contrary, and so far is the rule laid down in the case above referred to, from imposing a hardship on the debtor, that it only requires him to use the ordinary diligence, in asserting his rights, demanded in other legal proceedings. But this court will not require the creditor in the first instance, to presume that the debtor does not intend to fulfill his contract, (not unauthorized by law) according to the terms of the same. "Whether the rule adopted may be correct or otherwise as a matter of law, *525it is difficult to understand how it can justly be claimed as working a hardship upon those affected by it.
The judgment below is affirmed.
Chief Justice Emmett dissents.