Sandifer v. State

Mortgages — Foreclosure — Promissory Note Secured by Mortgage — Prior Action on Note Alone Waives Mortgage — Judgments — Collateral Attack — Presumption. Foreclosure of Mortgage — Promissory Notes — Note Secured by Mortgage — Action on Note Alone Waives Mortgage Security. 1. Where a note is secured by mortgage, an action on the note alone waives the mortgage security if plaintiff obtains a judgment which becomes final, and he may not thereafter go into a court of equity and secure relief by way of foreclosure. 2. Unless void on its face, or shown to be so on an inspection of the judgment-roll, a judgment cannot be successfully attacked collaterally; on such attack its validity will be presumed. Foreclosure of Mortgage — Promissory Notes — Waiver of Mortgage by Action on Note Alone — Collateral Attack on Judgment on Note not Permissible. Page 386 3. In consonance with the above rules, held, that where a promissory note secured by mortgage was prosecuted to final judgment on the note alone, the mortgagee thus waiving the mortgage security, he will not, on appeal from an adverse judgment in his suit to foreclose the mortgage, be permitted to attack the validity of the former judgment collaterally on the ground that the note in suit was left with his attorneys for safekeeping and that they prosecuted the suit thereon without authority from him.