There is but one point raised by the defendant as to which there can be any doubt of the correctness of the judgment appealed from.
It relates to the stipulation in the bond secured by the mortgage which the defendant has assumed to pay, that recourse shall be had to the premises mortgaged, by a foreclosure and sale, before resorting to the liability of the obligors in the bond, and that they shall be liable only for the deficiency. The bond is payable in two years — that is the term of credit on the debt, and prevents an action to foreclose the morgtgage, as well as any action at law to collect the bond.
The other stipulation, as to the resort to the personal liability of the obligors, does not prevent an action to foreclose the mortgage. On the contrary, it requires the obligee to pursue the mortgage, and exhaust that remedy first. Thus it appears that the stipulation does not extend or enlarge the term of credit on the debt, but affects the order in which the remedies may be taken to enforce payment.
The liability of the defendant is created by the terms contained in the conveyance of the mortgaged property which the company accepted. The defendant thereby assumed the payment of the mortgage. The term of credit named in the bond bars any action to collect the mortgage, and operates likewise to prevent any action against the company till the expiration of that time, although the terms of the deed to the defendant implies present time.
There is nothing, however, in the contract of the defendant, by which the mortgage is assumed, stipulating for any benefit as to the order in which the holder of the mortgage may take his remedies to obtain payment. Had the defendant claimed any such right, it might have been secured, by assuming the deficiency only to arise after a foreclosure and *Page 260 sale. The contract is different, however. It assumes the whole debt.
The judgment should be affirmed.
All concur.
Judgment affirmed.