| Ind. | Nov 15, 1876
Action by tbe appellee, against tbe appellants, to foreclose a mortgage. Issue; trial; verdict and judgment for tbe plaintiff.
The following is a copy of the mortgage sued upon:
“ This indenture witnesseth : That we, Benjamin Sebrell and Elizabeth Sebrell, his wife, of Madison county, in the State of Indiana, doth mortgage and warrant to John P. Sebrell, of Mason county, in the State of Virginia, the following real estate, in Madison county, in the State of Indiana, to wit,” (here the land is described); “ To secure the payment of one thousand dollars, to be paid by the mortgagor to the mortgagee, when called on by said mortgagee ; and the mortgagor does not agree to pay the above sum to no ” [any] “ one else, except said mortgagee. And the mortgagors expressly agree to pay the sum of money above secured, without any relief from valuation or appraisement laws. In witness,” etc.
The complaint alleges a demand of the money by the mortgagee, in his lifetime, from defendant Benjamin Sebrell, and his refusal to pay; also, the death of said mortgagee and the appointment of the plaintiff as his administrator, and that the plaintiff, as such administrator, before the commencement of this action, made a demand.
The complaint was good, because it contained an averment of the demand of the money by the deceased, in his lifetime, from said Benjamin. But this averment was not proved on the trial; a demand by the administrator, only, being proved.
Indeed, the case seems to have been tried on the theory that no demand by the deceased was necessary, in order to entitle the administrator to maintain the action.
There was no note or other document accompanying the mortgage; and the question arises, whether the latter bound the mortgagor Benjamin to pay the money, absolutely, or only upon the condition that it should be demanded or called for by the mortgagee. The language
The fair construction of the mortgage, as we think, bound the mortgagor Benjamin to pay the money specified, when he should be called upon for that purpose by the mortgagee; and if not called upon by the mortgagee for that purpose, he was not bound to pay it at all. The condition on which he was to pay was, that the mortgagee should call on him for payment, and that condition not haying been performed, he was not bound to pay at all. Any other interpretation of the mortgage would do violence to its terms, and frustrate the intention of the parties, as gathered from the language employed by them. There is no analogy between the case here and the ease of a note payable on demand, generally, on which suit may be brought without any demand. Fankboner v. Fankboner, 20 Ind. 62" court="Ind." date_filed="1863-05-15" href="https://app.midpage.ai/document/fankboner-v-fankboner-7036114?utm_source=webapp" opinion_id="7036114">20 Ind. 62; Mercer v. Patterson, 41 Ind. 440" court="Ind." date_filed="1872-11-15" href="https://app.midpage.ai/document/mercer-v-patterson-7039427?utm_source=webapp" opinion_id="7039427">41 Ind. 440. Here, a demand was not only to be made, but it was to be made by the mortgagee himself; implying, when taken in connection with what follows in the mortgage, that, if he did not choose to make it, the debt was not to be paid at all.
It may well have been that the mortgagee never intended that the debt should be paid at all, unless he himself should have occasion or see proper to demand it; intending, if he should not demand it, that the consideration of the indebtedness should be retained by the mortgagor, as a gift or gratuity. And dying without having demanded the debt, the gift became complete and perfect.
This in no way contravenes the doctrine, that, to constitute a valid gift, the thing given must be delivered to
The stipulation in the mortgage to pay the sum secured, without relief, etc., taken in connection with what precedes it, has reference to payment, only “ when called on by said mortgagee.”
We are of opinion, that, by the terms of the mortgage, the money • was not to bo paid, unless the mortgagee should, in his lifetime, call upon the mortgagor for it; and, that not having been shown, the defendants’ motion for a new trial should have prevailed.
"We may observe, that, if a different interpretation could be given to the contract by proof of surrounding facts, no such circumstances were alleged or proved by the plaintiff'. On the contrary, such circumstances as were shown by the defendants tended to sustain the construction we have placed upon the contract.
The judgment below is reversed, with costs, and the cause remanded for a new trial.