Stanclift v. Norton

11 Kan. 218 | Kan. | 1873

The opinion of the court was delivered' by

Brewer, J.:

Two questions are raised by counsel for plaintiff in error in their brief. The first grows out of these facts: The action is one for the foreclosure of a mortgage. The mortgagor failing to pay the taxes, the mortgagee paid them. The amount so paid was included in the judgment, and for it, as well as the principal debt, the premises were ordered sold. Was this error? The mortgage contains no other stipulation in reference to this matter than that upon a failure to pay the taxes when due, the entire mortgage debt should become due and the mortgagee at once entitled to recover. But the law. in force at the date of the execution of this mortgage, and continuously up to the present time, authorized the mortgagee upon the failure of the mortgagor to pay the taxes, to pay them himself and have the amount included in any judgment rendered oh the mortgage, and declared that the taxes so paid should be a lien upon the land: Geii. Stat., p. 1062, ch. 107, § 135. This mortgage contract was made with reference to the law then in force, and it was unnecessary to express in it a right which attached to all mortgages. It was by statute a condition of the contract as fully as though written in the body of the instrument. Probably too the moi’tgagee would have the right without the statute to pay the taxes and include them in the judgment, so as to keep his security perfect. There was therefore no error in this ruling of the court.

The other question arises on a demurrer to the defense stated in the answer. The time for which the note and mortgage were given had not expired when this action was brought. The only default alleged in the petition was a failure to pay the taxes when due, a sale for nonpayment, and a redemption therefrom by the mortgagee. Plaintiff claimed judgment and foreclosure for the full amount of the notes and the taxes. In their fourth defense the defendants alleged that since the filing of the petition herein, they had tendered to plaintiff the full amount of the taxes and penalty, and all costs accrued in the action, which tender was refused, and further' that they now repeated the tender and brought the money into court. To this defense a demurrer was interposed and sustained. Was this error ? We think not. By the express terms of the contract the entire amount of the debt was to become due upon a failure of the mortgagor to pay the taxes. There is nothing to vitiate such a contract. It is not prohibited by statute, nor against public policy. Nor is it a hard contract, one which it would be unconscionable to enforce. The lender of money may well insist that the security be kept intact, or the loan mature. This is but parallel to the case of a stipulation that upon a failure to pay interest promptly the principal shall become due. Such stipulations have almost invariably been sustained.;The Contributors, &c., v. Gibson, 2 Miles, 324; Ottawa Northern Plank Road Co. v. Murray, 15 Ill., 337; Hale, Rec'r, v. Governeur, 4 Edwards Ch., 207; Noyes v. Clark, 7 Paige’s Ch., 179; Sheel v. Bradfield, 4 Taunt. Rep., 227; James v. Thomas, 5 Barn. & Adolph., 40; Ferris v. Ferris, 28 Barb., 29; Valentine v. Van Wagener, 37 Barb., 60; Crane v. Ward, Clarke’s Ch., 393. In this last case the opinion contains this language: “The entire amount cannot be altered by any construction which may be given to the contract. The time of payment only is contingent. The parties to the original contract have unquestionably a right to agree that if the interest upon the money is not paid punctually the principal shall become due. So they might make any other event the criterion of the time when the principal was to be paid.” The case cited by counsel for plaintiff in error, 16 111., 400, has no application here.. Whether the facts alleged in the second and third defenses of the answer be true, we do not know. They are denied by the reply, and the record is silent as to the testimony. They must therefore be left entirely out of our consideration, and the case stands as the ordinary foreclosure of a mortgage with the default in the payment of taxes as the condition broken. The judgment of the district court will be affirmed.

All the Justices concurring.