19 Kan. 57 | Kan. | 1877
The opinion of the court was delivered by
In September 1875, the defendant in error commenced an action in the district court to recover judgment on three promissory notes, and foreclose a mortgage given to secure the same, each being signed by both defendants in error. The notes and mortgage were dated 20th May 1874; the former, each for the payment of $753.33, with twelve per cent, interest after maturity, together with reasonable attorney-fees, and were payable in one, two, and three years from date respectively. The mortgage contained this stipulation:
“This grant is intended as a mortgage to secure the payment of the sum of twenty-two hundred and sixty dollars, in three equal annual payments, with interest at the rate of twelve per cent, per annum; and if default be made in the payment of either amount of principal or interest at its maturity, the whole amount of this mortgage shall become due and payable according to the terms of three certain promissory notes this day executed and delivered by the said James M. Darrow and wife to the said John-Scullin; and this conveyance shall be void if such payment be made as herein specified. But if default is made in said payment, or any part thereof, as provided, then this conveyance shall become absolute, and it shall be lawful for said party of thé second part, his executors, administrators or assigns, at any time thereafter, to sell the premises hereby granted, or ány part thereof,'in the manner prescribed by law; and out of all the moneys arising from such sale, to retain the amount then due for principal and interest, and also for statutory damages in case of protest, together with the costs and charges of making such sale, and three per cent, of the amount secured by this mortgage as a*59 reasonable attorney-fee for foreclosure hereof, and the over-plus, if any there be, shall be paid by the party making the sale to the said James M. Darrow,” etc.
The first note not being paid at maturity, suit was brought as above stated. A deeree was entered, which found that the mortgage was a security for all three notes, but that the first only was due, rendered a personal judgment -for the amount of the note found to be due, directed a sale of the mortgaged premises, such sale not to be made until after maturity of the second note, that the proceeds be applied, first to the payment of the costs, then the personal judgment, then the two remaining notes in the order of their maturity, with twelve per cent, interest from the day of judgment, and also directed execution for any deficiency. Of this deeree the defendants below now complain, and present several points of alleged error. It seems to us that the principal error was committed in their favor, and against the plaintiff below. Such error consisted in the finding, that only one note was due. While the language quoted from the mortgage may not be entirely clear, yet it seems to us that it contains a stipulation, that if either note is not paid when it becomes due, that then and thereupon all the notes shall immediately become- due, and that the mortgage may be at once foreclosed in satisfaction of all. The words, “according to the terms of three certain promissory notes,” etc., seem to qualify and limit, not the clause immediately preceding, but the entire prior statement of the purpose of the grant and the matter to be secured thereby. This is made more clear by the subsequent language of the mortgage, as shown in the quotation above. Such being the true construction of the mortgage, (and the mortgage and notes are to be construed as one instrument; Muzzy v. Knight, 8 Kas. 456,) all the notes were due at the time of the commencement of this action, and a personal judgment should have been entered therefor, and such judgment would draw twelve per cent, interest. National Bank v. Peck, 8 Kas. 660.
We think however that in the decree as entered there was error in directing execution to issue for any deficiency in the