
    4123.
    Tobin v. Pursley.
    Decided July 23, 1912.
    Appeal; from Fulton superior court — Judge Ellis. November 23, 1911.
    
      William J. Laney, Joseph W. & John D. Humphries, for plaintiff in error.
    
      A. C. Broom, contra.
   Pottle, J.

It is no defense to an action on a promissory note that the note was given for the purchase-price of a mule, secured by a mortgage . thereon; that the defendant delivered the mule to the plaintiff (the mortgagee) upon his agreement to foreclose the mortgage in a justice’s court, sell the mule at constable’s sale (the note and mortgage being for more than $100), and notify defendant of the time and place of sale; that the “plaintiff foreclosed the mortgage in the superior court, had the mule sold by the sheriff, and failed to notify the defendant of the time and place of sale, and that, in consequence of this failure, the defendant did not appear at the sale, and the mule was sold for a sum greatly less than its value. If the defendant has any remedy, it is by an' independent action against the plaintiff.

Judgment affirmed.  