26 Iowa 233 | Iowa | 1868
In this construction we can not concur. The decree upon which appellants rely, at most, only held that
If such sale for taxes had been averred by the mortgagee and based thereon he was asking affirmative relief, then, if denied, he would, of course, have to establish such breach. Here, however, the burden is upon the mortgagee, or those claiming under him. And as they would be required to prove, to defeat the sale on this ground, that there was no such breach, they must, of course, aver it in the petition. At least, upon demurrer, nothing should be presumed against the validity of the sale.
It is true that the notice to the heirs (the present plaintiffs) stated that the sale would be madefor the pu/rpose of making the amount mentioned in the note ($1,269) with interest from thef/rst day of January, 1859. But it recited in clear and explicit terms the non-payment of the taxes, and that the right to sell was claimed to arise from such breach. And this we think is the fair and only reasonable construction of the language used. The duty to pay the taxes devolved by the express terms of the mortgage upon the mortgagor. It was not even provided as is usual in such instruments, that, upon the default of the mortgagor to pay taxes, the mortgagee might pay, having a lien for the same. But the parties agreed, that, if the taxes were not paid before sale, the mortgagee might then, and in that case, “ lawfully sell the premises at public auction, make a deed, rendering the surplus, etc.” This did not contemplate the payment to the mortgagee from the proceeds of the sale, the taxes
The power given was not to sell for sufficient to pay “ what was due at the time of the sale.” If so, then we would concede, that a sale for an installment due, and one to become due, would be void. It is rather like the cáse where the trustee is authorized to sell in default of the payment of interest. There the sale is valid though the principal is not yet due. So held in Richard v. Holmes, 18 How. 143. Here the power to sell for the non-payment of taxes, was intended to cover more than accrued interest. The parties made their own agreement, and while the power to sell is derived from the instrument itself, it is equally true, that where it has been fairly made, the courts have no right to make another agreement for them. No power to say, that it would have been better if they had incorporated other terms and conditions. And nothing is clearer than that the object and design of the parties should be kept in view in determining the extent and nature of the power conferred. Holding, as we do, that they intended and contemplated that the trustee might sell for the non-payment of the taxes, that by their agreement the power could then be exercised precisely as though there was default in paying the principal debt at its maturity, we are forced to the conclusion, that plaintiffs have no right to redeem. We need hardly say, that what is said about notice to the purchaser (Hunter) and his grantee (Prussia) can only relate to knowledge of the defects of which appellants complain in their petition. They were bound of course
The demurrer was properly sustained.
Affirmed.