Bills and Notes. Mortgage. Evidence, Presumptions and burden of proof. From the facts alleged in the declaration in an action against the maker of a promissory note it appeared that that note and a second note signed by another person were secured by a single mortgage of real estate, that the mortgage had been foreclosed by a sale under its provisions, that the proceeds of the sale had been applied in full payment of the second note and in part payment of the note in suit, and that the plaintiff sought to recover the unpaid balance. The answer contained merely a general denial and an allegation of payment. At the trial the plaintiff introduced the note in evidence and rested. The defendant offered no evidence, and no question was raised as to the execution of the note or the consideration therefor. The judge, subject to exceptions by the defendant, ordered the jury to return a verdict for the plaintiff for the balance claimed in the declaration. Held, that the action of the judge was right.
DeCOURCY, J.
This is an action against three of the five makers of a joint and several note for $14,400, which was long overdue. At the trial the plaintiff offered in evidence the note declared on and no question was raised as to its execution, or as to the consideration therefor. The defendants had pleaded a general denial and payment, but as they introduced no evidence the plaintiff would have been entitled to a verdict for the full amount of the note and interest were it not for its admissions in the declaration crediting the defendants with a partial payment. Whitney v. Clary, 145 Mass. 156.
It is alleged in the declaration that the note in question, together with a note of the same date for $3,600 signed by one Murnane, guardian, and held by the plaintiff, were secured by a mortgage of real estate; and that upon a default in the payment of principal and interest the plaintiff foreclosed the mortgage by sale and applied upon the notes the $17,000 for which it bid in the property. The exceptions raise no question as to the application of the proceeds of the sale between the note in suit and the Murnane note. Presumably the amount was first applied to the payment in full of the latter and the balance pro tanto to the note in suit, as the defendants admitted that if their requests for rulings were refused the jury should find in favor of the plaintiff for the balance due on the note with interest, and made no objection to the rendering of the verdict for $3,490.64.
As there was no special stipulation for the application of the mortgage security, the plaintiff had a right to apply the proceeds of the foreclosure sale in full payment of the Murnane note before crediting any to the note in question; and the defendants are liable for the unpaid balance. Wilcox v. Fairhaven Bank, 7 Allen, 270. Draper v. Mann, 117 Mass. 439. The trial judge rightly refused to give the rulings requested.
Exceptions overruled.