is it usury to compute the interest at the highest rate allowed on the amount to be paid at maturity, and deduct the interest so computed from that amount and pay the borrower the difference. Steen v. Stretch, 50 Neb. 572 (70 N. W. Rep. 48). Including in a mortgage a sum due a broker for procuring a loan to secure which it is given, which the mortgagee agrees to pay the broker when he collects it from the mortgagor, does not render the mortgage usurious. Secor v. Patterson, 114 Mich. 37 (72 N. W. Rep. 9). The fact that an agent, without the authority, consent, or knowledge of his principal upon loaning the money of the latter, exacts from the borrower a sum in the nature of a bonus in excess of the lawful interest, does not make the loan usurious. Barger v. Taylor, 30 Ore. 228 (47 Pac. Rep. 618). Citing, Van Wyck v. Watters, 81 N. Y. 352; Cox v. Insurance Co., 113 Ill. 385; Estevez v. Purdy, 66 N. Y. 446; Phillips v. McKellar, 92 N. Y. 34; Ammerman v. Ross, 84 Ia. 359 (51 N. W. Rep. 6); Vahlberg v. Keaton, 51 Ark. 534 (11 S. W. Rep. 878; 14 Am. St. Rep. 73; 4 L. R. A. 462); Bell v. Day, 32 N. Y. 165; Condit v. Baldwin, 21 N. Y. 219 (78 Am. Dec. 137); Nichols v. Osborn, 41 N. J. Eq. 92 (3 Atl. Rep. 155); Brigham v. Myers, 51 Ia. 397 (1 N. W. Rep. 613; 33 Am. Rep. 140); Rogers v. Buckingham, 33 Conn. 81; Greenfield v. Monaghan, 85 Ia. 211 (52 N. W. Rep. 193). Construing and applying S. C. Rev. Stat., §§ 1390, 1391, it is held that a mortgage note may be rendered usurious by the lender's agent deducting a commission from the amount loaned with the knowledge and consent of the lender, although the interest charged computed upon the amount actually received by the borrower does not exceed the statutory rate. Land Mortg. Inv. & Agency Co. v. Gillam, 49 S. C. 345 (26 S. E. Rep. 990). For further construction of this statute, see Ryan v. Southern Mut. Bldg. & L. Ass'n, 50 S. C. 185 (27 S. E. Rep. 618; 62 Am. St. Rep. 831). In Georgia it is held that a loan of money made in consideration of the maximum legal rate of interest and one-half of the commission charged by a third person for negotiating the loan is usurious. It is immaterial whether the third person is the agent of the lender, of borrower, or of both. Pottle v. Lowe, 99 Ga. 576 (27 S. E. Rep. 145; 59 Am. St. Rep. 246).

Sec. 623. Statute of limitations-Statutes construed. Foreclosure of a mortgage is not barred where the debt is not barred. Roberts v. Tunnell, 165 Ill. 631 (46 N. E. Rep. 713). But a mortgage may be foreclosed although an action on the obligation secured is barred by the statute of limitations. Demuth v. Old Town Bank, 85 Md. 815 (37 Atl. Rep. 266; 60 Am. St. Rep. 322). And the foreclosure may be had in such cases even as against a purchaser of the mortgaged property. Ellis v. Fairbanks, 38 Fla. 257 (21 So. Rep. 107). Citing, Inge v. Boardman, 2 Ala. 331; Fievel v. Zuber, 67 Tex. 275 (3 S. W. Rep. 273); Norton v. Palmer, 142 Mass. 433 (8 N. E. Rep. 346). The statute of limitations begins to run against the right to recover a deficiency at the time the mortgage debt becomes due. Thompson v. Cheesman, 15 Utah 43 (48 Pac. Rep. 477). A provision in a mortgage that the entire sum shall become due in case of default the payment of interest on the note which it is given to secure, does not start the statute of limitations to running against its foreclosure, where there has been such a default, but the statute begins to run only when the note matures according to its terms. Mason v. Luce, 116 Cal. 232 (48 Pac. Rep. 72); Richards v. Daley, 116 Cal. 336 (48 Pac. Rep. 220). Waiving the question as to whether or not a mortgagor's possession of the premises for 20 years after default bars foreclosure, it is held that as a payment made within that period by an owner of the equity of redemption of a part of the mortgaged premises inures to the benefit of such owner, such payment operates to interrupt the running of the statute. Longstreet v. Brown, N. J. Eq. (37 Atl.

Rep. 56).

in

Sand. & H. Ark. Dig., §§ 5094, 5095, fixing the same period of limitation upon a mortgage as would bar the debt secured by it, and providing that in order for payments to extend the period of limitation, they must be endorsed on the margin of the record of the mortgage, and allowing one year from the enactment of the statute for the foreclosure of mortgages, which would otherwise be barred by its provisions, in less than one year, is constitutional. Hill v. Gregory, 64 Ark. 317 (42 S. W. Rep. 408). The statute only applies to payments made after its passage. Battle, J., Dissenting. Fay

secure.

etteville Bldg & L. Ass'n v. Bowlin, 63 Ark. 573 (39 S. W., Rep. 1046). Under this statute, suits in equity to foreclose, as well as suits at law for possession of mortgaged property, must be brought within the period of limitation for a suit on the debt which the mortgage or deed of trust was given to American Mortg. Co. v.Milam, 64 Ark. 305 (42 S. W. Rep. 417). Construing and applying Idaho Rev. Stat., § 4520, providing that "there can be but one action for the recovery of any debt, or the enforcement of any right secured by mortgage upon real estate or personal property," it is held that when an action on a debt is barred, an action to foreclose a lien securing it is likewise barred. Law v. Spence, Idaho (48 Pac. Rep. 282). Or. Code Civ. Proc., § 25, providing that whenever any payment has been made on an existing contract after it becomes due, "the limitation shall commence from the time the last payment was made;" does not apply to payments on a mortgage debt made by the grantee of the mortgagor who did not assume its payment, in order to protect him on his subsequent covenant of warranty, so as to prevent the statute of limitations from running in favor of the original debtor or the subsequent grantees. Dundee Mortg. & T. Inv. Co. v. Horner, 30 Or. 558 (48 Pac. Rep. 175).

Sec. 624. Judgment in foreclosure proceedings. A conditional judgment of foreclosure cannot be entered under Wis. Rev. Stat., § 3162. Spengler v. Hahn, 95 Wis. 472 (70 N. W. Rep. 466). Where a mortgage specifies the amount for which it is a lien, it is error to give judgment of foreclosure for a larger sum. Home Fire Ins. Co. v. Fitch, 52 Neb. 88 (71 N. W. Rep. 940). A judgment foreclosing a mortgage which does not determine with certainty the amount due' upon the mortgage, is void. Vermont Loan & T. Co. v. McGregor, Idaho (51 Pac. Rep. 104). closure of several mortgages, some of

Upon the fore

which cover

several lois and some of which cover only a portion of them, the decree of sale should be made in accordance with the mortgages. Hibernia Sav. & L. Soc. v. Kain, 117 Cal. 478 (49 Pac. Rep. 578). Where collateral security

consists of the obligation of the pledgor executed to himself secured by a trust deed, the holder may have a decree foreclosing for the amount actually due him from the pledgor. Stanley v. Chicago Trust & Sav. Bank, 165 Ill. 295 (46 N. E. Rep. 273). Where a decree adjudicates the rights of two mortgagees whose mortgages cover the same property and orders a sale of the property, its subsequent reversal as to their relative rights will not invalidate the sale but will merely alter the disposition of the proceeds. Hinchman v. Point Defiance Ry. Co., 17 Wash. 399 (49 Pac. Rep. 1061). Where, in an action to foreclose an installment mortgage, a decree is duly entered and signed by the judge directing a sale to satisfy an installment due, such decree cannot be subsequently amended on motion of the plaintiff so as to provide for further sales on subsequent defaults in the payment of other installments. Byrne v. Hoag, 116 Cal. 1 (47 Pac. Rep. 775).

Sec. 625 Personal judgment in foreclosure proceedings. The plaintiff may have personal judgment on the note although the mortgage given to secure its payment is void. American Sav. & L. Ass'n v. Burchardt, 19 Mont. 323 (48 Pac. Rep. 391; 61 Am. St. Rep. 507). A personal judgment for a deficiency should not be given against a grantee of the mortgaged premises unless such relief is prayed for in the bill. Fisher v. White, 94 Va. 236 (26 S. E. Rep. 573). Where a personal judgment is not asked for or given to the plaintiff at the time of a foreclosure decree, he cannot subsequently, on motion and without notice to the defendant, have the decree amended so as to provide for a personal judgment. Scamman v. Bonslett, 118 Cal. 93 (50 Pac. Rep. 272; 62 Am. St. Rep. 226). A personal judgment for a deficiency cannot be rendered before the deficiency becomes due by the terms of the contract. Wis. Rev. Stat., § 3162, applied. Packard v. Kinzie Ave. Heights Co., 96 Wis. 114 (70 N.W. Rep. 1066). Upon foreclosure of a second mortgage, a deficiency judgment should be given to the holder for the balance due on it, and not for the amount due on the first mortgage and such balance. Kasson v. Tousey, 96 Wis, 511 (71 N. W. Rep. 894). A defendant cannot complain because a personal judgment is rendered against him for any

deficiency instead of the whole amount of the mortgage debt. Block v. Allen, 99 Ga. 417 (27 S. E. Rep. 737). Where there is a deficiency decree against one of several makers of a promissory note, and no disposition of the case as to the others is directly made, further than to decree that their equity of redemption is barred, the cause of action is barred in a subsequent suit on the note against those not included in the deficiency decree. Travelers' Ins. Co. v. Mayo, 170 Ill. 498 (48 N. E. Rep. 917). A court of equity having jurisdiction in an action to foreclose a mortgage to which nonresident purchasers of property are parties, may render judgment for damages on account of waste committed by them to the extent it rendered the security inadequate. Tate v. Field, 56 N. J. Eq. 35 (37 Atl. Rep. 440). Applying Colo. Code 1887, § 17, it is held that a personal judgment cannot be rendered on a cross complaint against one who has not been duly served with a copy thereof. Where there is a contest between successive grantees assuming the mortgage debt as to their liability, a personal judgment should not be rendered without bringing in as parties all the interested grantees. Skinner v. Harker, 23 Colo. 333 (48 Pac. Rep. 648). A mortgagor against whom a deficiency judgment has been rendered, whose grantee has assumed the payment of the mortgage, is not entitled to a judgment against such grantee for the deficiency until he has paid the same. O'Neal v. Hart, 116 Cal. 69 (47 Pac. Rep. 926). Particular cases in which the allowance of a personal judgment was held proper. Louisville Banking Co. v. Blake, 70 Minn. 252 (73 N. W. Rep. 155); Connor v. Jones, S. Dak. (72 N. W. Rep. 463).

Sec. 626. Personal judgment in foreclosure proceedings-Statutes construed. Construing and applying Utah Comp. Laws 1888, § 3460, providing that there can be but one action for the recovery of a debt or the enforcement of any right secured by a mortgage upon real estate or personal property, and that a personal judgment can be rendered only when it is made to appear from the return of the officer making the sale of the property that the proceeds are insufficient to pay the debt, it is held that a mortgagee or assignee