MANNING, J.
A large amount being involved in this cause, it has been argued earnestly and ably; and it has received our careful consideration. In this State it is settled that where several promissory notes are given by the purchaser of property to his vendor, for instalments of the price, and a mortgage or other instrument is executed, whereby the property is charged with the payment of the notes, without any provision that the proceeds of the security shall be first applied to the discharge of one or more of the notes in preference of others, and the payee, while owning all the notes, indorses one or more of them to another person, without reserving to himself an equal or any other interest in the security, the indorsee becomes entitled to so much of the proceeds of the property thus charged, as will, if sufficient, pay the notes so indorsed, whether there remain anything more or not, for the discharge of the notes retained. And the law is not different though the note or notes vdiich the payee assigns be of those that mature at a later day than those which he keeps. And, of course, an assignee of the notes that were thus retained, takes them with no greater security than was left to the payee who assigns them. The argument of ORMOND, J., in the well-considered case (though not the first on the subject) of Cullum v. Erwin, 4 Ala. 458, that a debt secured by mortgage is the principal, and the mortgage a mere accessory or incident; that an assignment of the debt, is, in equity, an assignment of the mortgage; that if there be several notes or bonds given for the debt, the assignment of one of these is, unless otherwise provided, an assignment pro tanto, of the assign- or’s interest in the mortgage; that if the mortgage prove insufficient for the entire debt, the assignee is entitled to payment in full from the proceeds of the mortgage, before his assignor, the mortgagee, shall receive anything; and that since the latter can afterwards transfer no greater interest than he has himself, if he shall transfer successively, in the same manner, the remaining notes to other persons, each successive assignee will acquire all the rights of the assignor at the time of assignment, and no more; a result which [7] would follow, whether the notes be transferred in the order in which they mature, or not. These consequences, the court held, flow from the mere assignment of the debt, unless it be otherwise stipulated. And in The Bank of Mobile v. The Pl. & Mer. Bank, (9 Ala. 648), the court, through the same esteemed judge, say: “Priority of right of satisfaction results as a legal inference from priority of assignment, and can be repelled only by showing affirmatively that no such priority of right was intended to be conferred.”
In Nelson & Hatch v. Dunn, (15 Ala. 501) eleven notes had been executed, falling due in successive years, and secured by a deed of trust to a third person. The payee first assigned some of those that were made payable at a later day than others which were then retained; and afterwards he assigned some of these and others that remained. The court held that the same rule of priority, without regard to the order in which the notes matured, must be applied in this case, as in the others. And it was again affirmed and applied in Griggsby v. Hair, (25 Ala. 331) where the notes were secured by a bond which the vendor executed to make title, when the purchase money should be paid, the title being retained as security.
But counsel for appellants insist that according to the terms of the letter of attorney, and the understanding of the parties when the notes were indorsed to Hall, the rule of priority of payment, according to priority of assignment, should not obtain in this case. In regard to this understanding, if oral testimony alone be admissible to establish it, the evidence shows that it was only Mr. Perry’s idea or opinion of the effect of what was done. He thought that the assignment of a part of the notes, operated as an assignment of the security pro rata, and not pro tanto, And he doubtless supposed that this was Mr. Hall’s idea also. But no stipulation or condition of that kind is shown to have been assented to by Hall. It is a matter that was not even talked about. They both, evidently, were at that time, of the opinion that the security was ample for all the notes. Indeed, no apprehension appears to have then existed in regard to the solvency, or the sufficiency, of the company which made them. The legal inference from priority of assignment, therefore, is not repelled by the testimony.
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MANNING, J.
A large amount being involved in this cause, it has been argued earnestly and ably; and it has received our careful consideration. In this State it is settled that where several promissory notes are given by the purchaser of property to his vendor, for instalments of the price, and a mortgage or other instrument is executed, whereby the property is charged with the payment of the notes, without any provision that the proceeds of the security shall be first applied to the discharge of one or more of the notes in preference of others, and the payee, while owning all the notes, indorses one or more of them to another person, without reserving to himself an equal or any other interest in the security, the indorsee becomes entitled to so much of the proceeds of the property thus charged, as will, if sufficient, pay the notes so indorsed, whether there remain anything more or not, for the discharge of the notes retained. And the law is not different though the note or notes vdiich the payee assigns be of those that mature at a later day than those which he keeps. And, of course, an assignee of the notes that were thus retained, takes them with no greater security than was left to the payee who assigns them. The argument of ORMOND, J., in the well-considered case (though not the first on the subject) of Cullum v. Erwin, 4 Ala. 458, that a debt secured by mortgage is the principal, and the mortgage a mere accessory or incident; that an assignment of the debt, is, in equity, an assignment of the mortgage; that if there be several notes or bonds given for the debt, the assignment of one of these is, unless otherwise provided, an assignment pro tanto, of the assign- or’s interest in the mortgage; that if the mortgage prove insufficient for the entire debt, the assignee is entitled to payment in full from the proceeds of the mortgage, before his assignor, the mortgagee, shall receive anything; and that since the latter can afterwards transfer no greater interest than he has himself, if he shall transfer successively, in the same manner, the remaining notes to other persons, each successive assignee will acquire all the rights of the assignor at the time of assignment, and no more; a result which [7] would follow, whether the notes be transferred in the order in which they mature, or not. These consequences, the court held, flow from the mere assignment of the debt, unless it be otherwise stipulated. And in The Bank of Mobile v. The Pl. & Mer. Bank, (9 Ala. 648), the court, through the same esteemed judge, say: “Priority of right of satisfaction results as a legal inference from priority of assignment, and can be repelled only by showing affirmatively that no such priority of right was intended to be conferred.”
In Nelson & Hatch v. Dunn, (15 Ala. 501) eleven notes had been executed, falling due in successive years, and secured by a deed of trust to a third person. The payee first assigned some of those that were made payable at a later day than others which were then retained; and afterwards he assigned some of these and others that remained. The court held that the same rule of priority, without regard to the order in which the notes matured, must be applied in this case, as in the others. And it was again affirmed and applied in Griggsby v. Hair, (25 Ala. 331) where the notes were secured by a bond which the vendor executed to make title, when the purchase money should be paid, the title being retained as security.
But counsel for appellants insist that according to the terms of the letter of attorney, and the understanding of the parties when the notes were indorsed to Hall, the rule of priority of payment, according to priority of assignment, should not obtain in this case. In regard to this understanding, if oral testimony alone be admissible to establish it, the evidence shows that it was only Mr. Perry’s idea or opinion of the effect of what was done. He thought that the assignment of a part of the notes, operated as an assignment of the security pro rata, and not pro tanto, And he doubtless supposed that this was Mr. Hall’s idea also. But no stipulation or condition of that kind is shown to have been assented to by Hall. It is a matter that was not even talked about. They both, evidently, were at that time, of the opinion that the security was ample for all the notes. Indeed, no apprehension appears to have then existed in regard to the solvency, or the sufficiency, of the company which made them. The legal inference from priority of assignment, therefore, is not repelled by the testimony.
Is it repelled by the contents of the writings ? It has been argued that the transaction is like that by which a railroad company raises money to build or equip its railway, when it issues its bonds secured by a mortgage of the road and its appurtenances; in which case, it is, of course, intended that if the security be insufficient, the several holders of the [8] bonds shall be paid, without preference of any, pari passu. But, besides that this is an original issue of bonds, not till issued, haying any value, by the mortgagor, all bearing the same date, and to be regarded, by relation, as issued at the same time, and not an assignment by a mortgagee of things which are of value while in his hands, and which he may dispose of in any manner he may choose, — the provisions of the letter of attorney show expressly that the security was not created for all the notes equally. The direction that they shall be paid “in the order of their maturity,” entitled the holders of the notes payable one, two, and three months after date, to payment successively and in full, before anything should be applied to the discharge of the other eleven notes, though they and the former were all past due and unpaid, when the lien should be enforced. Such a prescribed preference destroys the likeness supposed to exist between this and the railroad transaction to which it is compared, and shows that the former Avas not intended to be of the same kind as the latter. This is made yet more manifest by the clausewhich provides, if the notes, or some of them, be negotiated before maturity, any person who may become the “lawful holder” thereof, shall have the right to execute the powers of sale and payment conferred on Perry — “so far as they apply to such note or notes so held by such person”- — and by the further clause that in the event of Perry’s death, his executors or administrators may also execute the same powers — “so far as they may apply to any of said notes remaining assets of his estate.” In what railroad mortgage made to secure payment pari passu, of the bonds about to be issued, was authority ever given to the holders of some of the bonds to sell the property and pay themselves without regard to the rights of those who hold others of the same batch of bonds, bearing the same date, payable at the same time and in all respects alike ? Whether it would be practicable, or not, under a letter of attorney framed as the present one is, for such powers as are conferred on Mr. Perry, to be executed, “without resorting to the courts,” by persons not named in it, and whose right to sell real estate might depend upon its being proved by merely oral testimony, that they were “lawful holders” respectively, of some of the notes, and that Mr. Perry had negotiated them before maturity, is a question which, though it might have arisen, we have not now to determine. But it is obvious from the provisions referred to, that it was intended, if the necessity to sell should come, that the property might be sold in parcels (“so much thereof as necessary,”) by different persons, to pay .the note or notes, of which they might, respectively, be “lawful holders,” [9] and that they should severally have no authority to sell more than might be sufficient to pay expenses of the “sale or sales,” and the notes held by them, unless they might do so to raise money enough to discharge some of the notes of earlier maturity and still unpaid — to which priority is given by the terms of the letter of attorney.
The office of the clause requiring payment to be made of the notes “in the order of maturity,” is fully performed by its securing priority to the first five falling due. In regard to the other eleven, there is no particular provision at all. What remains of the security is to go to the payment of them— but whether pari passu, or to one before another, is not prescribed. What then? Suppose all the eleven notes remained in Perry’s hands, and he, exercising the power conferred upon him, had sold the property and had realized from it, say $50,000; must this be credited — was it contemplated that it should be, pro rata on each of the notes ? Might he not have cancelled as paid, so many of the notes as would make up that sum and retain the others as still entirely due ? If he had done so, and had sued on these afterwards, could the debtor have pleaded that Perry had received moneys which, according to the terms of the instrument by which they were obtained, should have been credited on the notes sued on, and that he was, therefore, entitled to recover only the balance that would in that case have been due on them? Or, is there anything in the instruments to prevent him, while holder of all the notes, upon transferring one of them, from writing on its back, that he indorsed and assigned it to A B toibhoub any interest in the security provided, by deed and letter of attorney, for it and other notes ? or, with a pro rata interest therein ? or, with so much of the security as may be needed to pa/y the notes ? These questions must evidently be answered in the negative. And it, therefore follows, that when Mr. Perry indorsed the notes he negotiated to Hall, in such a manner as the law declares shall operate as a transfer, in equity, of an amount of the security equal to the amount of the notes, he thereby gave to those notes priority of payment out of the security, over the notes retained by himself and after-wards transferred to others.
The argument that the transaction between Perry and Hall was usurious, and the latter is therefore not entitled to recover the whole amount of the notes he purchased, is without foundation. In the first place, the law does not prohibit the payee of a note, which is itself not taintecl with usury, from selling it in good faith, for a less sum than the amount of it. — 2 Pars, on Oontr. 421. And in the second place, if it did, strangers to the transaction, as the assignees of other [10] notes are, cannot be beard to make that objection — Fenno v. Sayre, 3 Ala. 458; Cook v. Dyer, id. 643; Harbinson v. Harrell, 19 Ala. 753; Cain v Grinon, 36 Ala. 168.
Let the decree of the chancellor be affirmed.