58 Neb. 417 | Neb. | 1899
This suit was instituted to foreclose a mortgage on certain real estate situate in the city of Omaha. From a decree in favor of plaintiff defendants have prosecuted an appeal.
The first contention of the defendants is that the suit was prematurely brought. The note the mortgage in question was given to secure was in the sum of $12,000, negotiable in form, dated April 28,1892, and by its terms payable on May 1, 1897, with interest at seven and one-half per cent per annum from date, payable semiannually, according to the tenor of ten interest notes of $450 each, except one being for $457.50. This suit was instituted on May 18, 1895, or before the time the note by its terms had matured. The main note, however, contained a stipulation that “if default be made in the payment of any interest note, or any portion thereof, for the space of ten days after the same becomes due and payable, ‘then said principal and interest notes shall, at the option of the said Hartsuff, or the legal holder of said note, become at once due and payable without further notice.” The interest note, which was made payable on May 1,1895, was not paid on that date, nor yet at the time of the institution of the present suit, and it is argued that such default, by the above quoted provision of the principal note, ipso facto made the whole debt at once due and payable, and authorized the bringing of the suit to foreclose the mortgage. We are unable to fully appreciate the force of the argument in support of this contention of the learned counsel for plaintiff. This coupon
It is argued that plaintiff waived the right to declare a forfeiture by paying the taxes. We do not think this is true. He had the right to pay the delinquent taxes against the premises to protect his security, and in making such payment he was not thereby estopped from availing himself of the right to declare the mortgage debt due.
The record discloses that in the decree of the court below plaintiff was awarded a lien for special paving and curbing taxes against the mortgaged premises levied by the city of Omaha which he had paid. The burden was upon the plaintiff to establish the validity of these special taxes before he was entitled to a lien on account of their payment (Leavitt v. Bell, 55 Neb. 57); and he having failed to show that these special taxes were legally levied, the court below erred in giving plaintiff a lien against the real estate for the amount of such special taxes. The decree is accordingly reversed, and the cause is remanded to the district court with direction to enter a decree in favor of plaintiff for the amount of his mortgage debt, including interest, and the amount of all general taxes paid, with legal interest thereon.
Reversed and remanded.