Frazier v. Lanahan

Robinson, J., delivered the opinion of the Court. ¹³³ The appellant, Frazier, was indebted to Messrs. Lanahan & Son on a running account beginning in 1871, and continuing down to 1874. Among the items in this account was a note of $1,640, the payment of which was secured by a mortage, in which Frazier’s wife united. Another item was a note of $1,000, and on this note a judgment was entered against Frazier and wife.

The entire indebtedness of Frazier to Lanahan & Son amounted to $8,017.10. Upon this indebtedness payments were made by Frazier at sundry times amounting to $6,642.37, leaving a balance, as claimed by Lanahan & Son, of $1,474.73. There does not seem to have been any specific appropriation of these payments, either by Frazier or by Lanahan & Son, and the question is, how shall these payments be applied by a Court of equity? All agree that the payments made prior to the execution of the mortgage and the entry of the judgment on the note of $1,000, are to be applied to the first items of the account, but the contention is in regard to the payments subsequently .made, amounting to about $1,400 — whether they shall be applied to the mortgage or to the judgment. blow, whatever may be the rule elsewhere, it is well settled in this State that where one is indebted to another on a mortage or on a judgment, and on open account or note, and makes a payment generally, and there has been no appropriation of such payment by the creditor, the law will apply it to the most burdensome debt; that is to say, to the mortgage'or judgment in preference to the note or open account.

Such was the rule of the civil law, and it has been the rule here ever since the decisions in Gwinn vs. Whitaker, 1 H. & J., 754 ; Dorsey vs. Gassatvay, 2 H. & J., 412 . In this case the mortgage and judgment are both liens on the property of the debtor, the one a general and the other a specific lien, and the payments, it seems to us, ought to be applied, therefore, to the oldest lien due and ¹³⁴ enforceable at the time the payments were made. And if so, the