Chapin v. Jacobs
10 Mich. 405
Mich.
1862
Check Treatment
Manning J.:

On the fourth of August, 1855, Jacobs purchased of Seymour a piece of land, sixty feet square, on Jefferson *413avenue, in the city of Detroit, for $10,000, payable as follows : Five hundred dollars on the fourth day of August 1857, 1858, 1859 and 1860; and fifteen hundred dollars on the fourth day of August 1861, 1862, 1868, 1864 and 1865, with interest. And to secure the payment of the purchase money and interest, Jacobs executed a mortgage to Seymour on the land purchased of him; and also at the same time as collateral security a second mortgage on another piece of land, with a condition that if Jacobs should pay to Seymour the sum of $2,000, part and parcel of the sum of $10,000 secured by the first mortgage, viz: the payments of $500 each, payable on the fourth day of August 1856, 1857, 1858 and 1859, the mortgage was to be void: It being understood and made a part of the condition, that, whenever Jacobs should build on the premises covered by the first mortgage, and should cause the buildings thereon to be insured in a good and responsible insurance company, for at least $2,000, and assign the policy of insurance to Seymour, and agree to keep the same so insured for the benefit of Seymour during the continuance of the first mortgage, that then Seymour should release and discharge the second mortgage.

A bill having been filed to foreclose the two mortgages for the installments of $500, due in 1857, 1858, 1859 and 1860, Jacobs insists that, having erected a building on the premises purchased of Seymour, and caused the same to be insured, and having since the filing of the bill tendered an assignment of the policy, he is entitled to have the second mortgage discharged, and that complainant can only have the first mortgage foreclosed.

Before inquiring into the facts on which a discharge of the second mortgage is claimed, it is necessary to determine the rights of the parties ■ under it.

It is for the payment of the first four installments of $500 each, mentioned in the first mortgage. It was intended to secure their payment, and could be foreclosed for their *414non-payment and for nothing else. It could not be foreclosed for the omission or refusal of Jacobs to build on the premises he had purchased of Seymour; or, having erected one or more buildings thereon, for his omission or refusal to insure; or, having insured, to assign the policy. Jacobs was under no obligation to Seymour to build, insure or assign the policy. It was optional with him to do any or all of them as he saw fit. The only effect of mentioning them in the condition of the mortgage was, if they- were performed by Jacobs, to release the lien Seymour had on the premises mentioned in that mortgage for the first four payments mentioned in the first mortgage. If Jacobs performed before any of the said payments became due, to release the premises from all of them; if after a part had become due, from those only that were not due. The condition of the mortgage is in the alternative, to pay the $2,000, or to erect a building on the lot purchased of Seymour, get it insured, and assign the policy. Jacobs had a right to elect which he would do before the payments became due, but not afterwards. With the day of payment his right of election ceased; and if equity can in any case, where an election is lost by lapse of time, give relief — -for we are not prepared to say there may not be such cases— the present is not one of them. No equities are shown on which such relief can be based. Jacobs is not injured. He is asked to pay what he agreed to pay, and no more. Seymour, or rather the complainant, who is the assignee of the two mortgages and the bond accompanying the first mortgage, asks and can receive no more than what is justly her due. And as Jacobs is insolvent, and it is probable that the premises covered by the first mortgage would not sell for enough to pay her, it would be inequitable to take from her the right she has to make a part of the debt due her out of the second mortgage. ■

So much of the decree as declares the $2,000 mortgage has been discharged must be reversed, and the decree be *415so modified as to direct a sale of the premises mentioned in that mortgage for the $500 installments that became due ,in 185!, 1858 and 1859, with complainant’s costs in this Court, unless redeemed.

Christian cy and Campbell JJ. concurred. Martin Ch. J. dissented.