58 Neb. 379 | Neb. | 1899
Lead Opinion
On April 2, 1894, -the appellee John Westerhoff and his wife executed and delivered to the appellant a prom
There are but two main questions presented in the appeal, viz.: Was the appellant entitled to enforce the note and mortgagé as past due because of the default in the payment of the interest; and in this connection was there evidence of the default or a lack thereof? Second — If entitled to foreclosure, should the decree be for nine per cent per annum from the date of the default in payment of the interest coupon?
Of the latter branch of the first question it must be said that in the answer there were statements which in effect constituted an admission of the failure to pay the amount of the first coupon at its maturity, and as to the first and main point of that question, that it is well established that for any default in the payment of the installments of principal or interest provided in a note and mortgage, or either, the further provision of the accelerated maturity of the debt or portions thereof is not a forfeiture and may and will be enforced as the allowable contract of the parties. (Pope v. Hooper, 6 Neb. 178; Lowenstein v. Phelan, 17 Neb. 430; Morling v. Bronson, 37 Neb. 608; Eastern Banking Co. v. Seeley, 55 Neb. 660; Pomeroy, Equity Jurisprudence sec. 439; Wheeler v. Howard, 28 Fed. Rep. 741; Whitcher v. Webb, 44 Cal. 127.) And the tender of the overdue interest after the default did not deprive the mortgagee of his right of foreclosure. (Swearingen v. Lahner, 61 N. W. Rep. [Ia.] 431.)
It follows from what has been said-that the judgment of the district court will be reversed and the cause remanded to that court with instructions to enter a decree of foreclosure for the amount of the note and mortgage and interest at six per cent per annum from the commencement of the action, — this portion of the decree to bear interest at seven per cent per annum; also for the amount due on interest coupons with interest at nine per cent per annum from the defaults in payments, and interest at the same rate on this branch of the decree.
Reversed and remanded.
Rehearing
on motion for rehearing.
The adjudication by the district court of Seward county of the matters of litigation in this, an action of foreclosure of a real estate mortgage, was appealed to this court and submitted; and in an opinion reported in 58 Neb. 379, there was set forth the decisions of the questions
Reversed and remanded.