117 Mich. 631 | Mich. | 1898
March 1, 1892, the Detroit Motor Company issued 100 coupon bonds, of $1,000 each, payable March 1, 1897, with interest at 6 per cent., payable semi-annually. Each bond states upon its face that it—
“ Is secured by first mortgage to the Union Trust Company of Detroit, Michigan, as trustee, bearing date the 1st day of March, 1892, and conveying to said trustee the real estate, franchises, and plant of this company, located at Detroit, Wayne county, Michigan. This bond is further secured by an instrument in writing of even date herewith, duly executed by J. Huff Jones, William C. Maybury, F. A. Blades, Waring H. Ellis, T. B. Rayl, Charles W. Casgrain, and Ellwood T. Hance, all of Detroit, Michigan, aforesaid, to said trustee, guaranteeing the payment thereof as herein provided.”
* The mortgage bears the same date as the bonds, is in the usual form, recites the bonds, and contains the following provisions:
*633 “And it is hereby expressly agreed by and between said parties that should any default be made in the payment of said interest, or any part thereof (or any installment of principal, or any part thereof), on any day whereon the same is made payable as above expressed, and should the same remain unpaid and in arrears for the space of 30 days, then and from thenceforth — that is to say, after the lapse of the said 30 days — so much of the aforesaid principal sum of $100,000 as remains unpaid, with all the arrearage of interest thereon, shall, at the option of the said party of the second part, its successors or assigns, become and be due and payable immediately thereafter, although the period above limited for the payment thereof may not then have expired; anything hereinbefore or in said bonds contained to the contrary thereof ■in anywise notwithstanding. * * *
‘ ‘ This mortgage and the bonds accompanying the same, and to which it is collateral, is guaranteed as to payment by a certain instrument in writing, bearing date March 1, 1892, inuring to the benefit of the said second party, and is signed by the persons comprising the board of directors of the said first party.”
The guaranty, which bears the same date as the bonds and mortgage, recites the issuing of the bonds, the execution of a first mortgage to the trust company to secure them, and proceeds as follows:
“Now, therefore, for the purpose of further securing the payment of said bonds, and of each of them, and of the interest due thereon, in accordance with the terms and conditions of said bonds, the parties of the first part hereby agree to and with the said party of the second part, for the benefit of those who may become holders of said bonds, and to and with each of the holders of said bonds, that the said bonds, and each of them, and the interest thereon, shall be paid in accordance with the terms thereof; and they hereby guarantee the prompt payment of the same, both principal and interest, at the time and times specified in the bonds, and in each of them.”
Interest being in default for more) than 30 days, the Unioil Trust Company, at the request of the bond-holders, declared the whole amount of said bonds due, and filed its bill of foreclosure upon May 28, 1896. The guarantors
Counsel for complainant state their- contention as follows:
“Only one question is raised by this appeal: Were the guarantors bound by the, provision of the mortgage that, in case of default in the payment of interest, the 'trustee might declare the principal due forthwith ? ”
Defendants contend that, under the terms of the guaranty, the individual defendants were only liable for the payment of the principal of the bonded debt at its maturity, and that by reason of the complainant’s declaring the ■whole amount due, and proceeding against them in this suit nine months before the date of maturity, their contract was thereby varied, and they were, released from liability; and that, if the guarantors be held liable for the interest which had matured on the bonds, tti^ proceeds of the sale of the property under the decree should be first applied to the satisfaction of their liability, inasmuch as the unpaid interest was the portion of' the debt first maturing.
It is contended that relief cannot be had in this suit against the guarantors, but we think the statute (2 How. Stat. § 6704) authorizes the joining of guarantors of payment with the principal debtor in foreclosure proceedings. Johnson v. Shepard, 35 Mich. 115; Michigan State Bank of Eaton Rapids v. Trowbridge, 92 Mich. 221.
The principal of the bonds having matured. since the suit was instituted, the decree should pass against the guarantors for the full amount due. Johnson v. Van Velsor, 43 Mich. 215; Jehle v. Brooks, 112 Mich. 131; Hanford v. Robertson, 47 Mich. 100.
The decree below will be modified as indicated in this opinion. The complainant will recover costs of both courts.