ALLEN v. O’DONALD. 19 _
22, 1876, at the request of Cross, to discharge a mortgage on 320
acres of said land, given to the board of school land commissioners
on June 18, 1867, to secure the payment of the note of Cross of that
date for $594, and payable with interest one year after date; (3)
$221.74, paid on the same day, and like request, to said board, to
obtain a deed for 110.87 acres of said land theretofore purchased by
Gross from the state; and (4) $6,837.11, being the remainder, on the
notes aforesaid; and on November 2, 1878, the Erm of Allen & Lewis
executed a release to Cross, discharging the lands so sold from the
operation and lien of said mortgage.
On the filing of the bill, it appearing therefrom that the land was
not sufficient security for the debt, a receiver was appointed to collect
the rents and manage the same; and on May 30, 1885, an order was
made, with the consent of the defendants Edwin C. and Frank R.
Cross, that the receiver sell the remaining portion ofthe property
subject to the mortgages, except the parcels 14 and 15 aforesaid;
and on September 17th he sold the same at auction, receiving for the
2,499 acres of agricultural land $39,344.04, and for the town lots
$5,425, in all the sum of $44,769.04, which was applied on the notes,
less the sum of $88.25 paid for advertising and an auctioneer. On
March 8, 1885, the cause was before the court on exceptions to the
answer of Edwin (J. and Frank B. Cross for impertinence therein,
` namely: (1) That it was stipulated in said mortgages that in default
of payment of the notes they should be foreclosed according to law,
and no other or different mode of disposing of said lands was pro-
vided therein, or contemplated bythe parties thereto; (2) the sale of
a portion of said lands as above stated, for $8,593.81, was contrary
to the terms and conditions of the mortgages, and without the con-
sent of the defendants; that the property so sold was then worth,
and under ordinary circumstances would have sold for, $20,000; and
that the expense of said sale was wrongfully charged to the proceeds
thereof; and (3) that the lands of Pluma F. included in said mort- .
gages were, at the time of such sale, and now are, worth not more
than $10,000, and therefore the same ought to be released and dis-
charged from the operation and eifect of said mortgages. 4
In support of the answer it was contended that when a creditor
relinquishes a lien on any portion of his debtor’s property, without
reducing the debt in an amount equal to the value thereof, the prop-
erty of the surety is so far disharged from liability therefor. The
exceptions were overruled; and, in disposing of them, the court said :·
“In round numbers, there is now due on these notes not less than $80,000.
In the argument for the exceptions it is claimed that the whole property
included in the mortgages is not sufficient to pay the debt by a much larger
sum than the alleged value of the property of the defendants, and if this is
, B0, then the defendants are not injured by what they complain of, and the
allegations excepted to would be no defense to the bill, and be clearly imper-
tinent. But the court cannot say judicially what this 3,661.54 acres of land
llvvorth. It cannot assume that it is only worth $70,000, and not ‘$80;000;'