
    No. 2995.
    Hartzog & Hays v. Goodwin.
    April Term, 1892.
    
      Graydon & Graydon & Giles, for appellants.
    
      Parker & McGowan, contra.
    
      Held, (1) That the finding by the Circuit Judge must be sustained, as there was testimony to support, that view.
    (2) That the proceeds of the sale of the young mule must be applied to the notes secured by the mortgage of such mule, no express agreement to apply otherwise having been shown.
    (3) If anything is due to plaintiffs, it must be on the note given for the purchase money of the old mule, which cannot be protected by a mortgage given to secure another debt, or be adjudicated under this complaint.
    Judgment affirmed, without prejudice to plaintiffs’ right to recover the amount, if any, due on the note for ninety dollars.
    September 13, 1892.
   Opinion by

Mr. Chief Justice McIyer,

Plaintiffs sold to defendant a young mule, taking in payment two notes, secured by a mortgage of the young mule and a mortgage of a tract of laud. Afterwards, the plaintiffs took the young mule back by consent, and let defendant have an old mule at ninety dollars, for which defendant gave his note, and a mortgage of the old mule. Plaintiffs sold the young mule for a sum which, together with other payments, was sufficient to extinguish the two notes first given, but not the third also. Action was then brought by plaintiffs to foreclose the mortgage on the land, and defendant pleaded payment. The case was tried before Judge Witherspoon, Abbeville, June, 1891. Plaintiffs’ testimony tended to show that the proceeds of sale of the young mule were to be applied to payment of the note for ninety dollars given for the old mule, and the remainder to the prior notes, while defendant’s testimony was that such proceeds were to be applied primarily to the prior notes, and only the excess to the note for ninety dollars. The Circuit Judge held that the notes given for the young mule were paid, and dismissed the complaint. Plaintiffs appealed.  