Coman v. Peters

• Decision Date: 13 April 1909
• Citation: 100 P. 1002,52 Wash. 574
• Parties: COMAN et al. v. PETERS et al.
• Court: Washington Supreme Court

100 P. 1002

52 Wash. 574

COMAN et al. v. PETERS et al.

Supreme Court of Washington

April 13, 1909

Appeal from Superior Court, Adams County; W. W. Zent, Judge.

Action by Edwin T. Coman and another against H. C. Peters and others. From a decree for defendants, plaintiffs appeal. Affirmed.

W. H. Winfree, for appellants.

Edward J. Cannon and Arthur B. Lee, for respondents.

PARKER J.

This is a suit to foreclose a mortgage, and the principal issue involved is as to whether or not the debt secured became due before the commencement of the suit. The conclusion we arrive at on this question renders it unnecessary to review the many minor facts and arguments thereon presented by learned counsel for the parties, all of which even if resolved most favorable to appellants could not avail them or change the result. The facts briefly stated are as follows: On July 15 1906, the defendants Peters and wife made and delivered to the First Savings & Trust Bank of Whitman county three notes for $10,170, payable in two, three, and four years after date, without grace, at 12 o'clock noon, with an interest clause inserted therein as follows: 'With interest thereon at the rate of 7 per cent. per annum from date hereof until paid, interest payable annually.' And, to secure payment thereof they on the same day executed and delivered to the bank a mortgage upon certain lands, which mortgage contained the following clause: 'In case any principal or interest as provided in said notes shall become due and remain unpaid, then the whole of the principal and interest of said notes and all moneys secured hereby shall immediately become due and payable, and this mortgage may be foreclosed for the whole of such moneys.' There is considerable in the record and arguments of counsel dealing with the question of whether or not the acts and communications of the parties amounted to a tender of the interest on July 15, 1907, being the day on which the first annual installment thereof became due. We pass this, however, as unnecessary for our consideration. The next morning, July 16, 1907, the Colfax National Bank in behalf of the payors of the notes being authorized so to do, tendered to the First Savings &amp Trust Bank, which was then still she owner of the notes, the sum of $2,135.70 in gold coin, being the amount of interest falling due the day previous. This tender has since been kept good. It was refused by the First Savings & Trust Bank because, as it claimed, the whole indebtedness had become due by virtue of the provisions of the mortgage above quoted and failure to pay the interest the day previous. Just what was said at this time indicating an intention on the part of the payee to claim the whole debt as then due by reason of failure to pay the interest the day previous is not clear. But it is certain that up to the moment the tender was made, and the gold coin actually produced therefor, there had not been any notice, or even intimation by the payee bank, to the payors, or to the bank which was acting as their agent, that the interest money would be refused, or that it (payee) elected to declare the whole debt due. A few days later this suit was commenced to foreclose the mortgage, and has been prosecuted upon the theory that the entire debt secured thereby became due upon failure to pay the interest accruing July 15, 1907, on that day. Peters and wife conveyed the land to the irrigation and power company, the railway company acquired a right of way over the land, and the notes and mortgage were assigned to the plaintiffs and appellants, all of which accounts for the present parties to the suit. The suit was dismissed by the trial court upon the ground the debt had not matured, and plaintiffs appealed.

The principal contention of the attorneys for the appellants, and in our opinion the one upon which this whole controversy turns, is that the language of the mortgage not containing any words of option indicating an election necessary by the payee to mature the whole debt, and apparently unqualifiedly providing that upon default all moneys secured 'shall immediately become due and payable,' has the effect of maturing the whole debt, upon default, without any affirmative act or any claim on the part of the payee. This court has heretofore decided the principle here involved against this contention, and has made no distinction between a case where there are words of option in the mortgage or agreement and cases where there are none, so far as the duty of the payee is concerned, in electing to declare the whole debt due in order to...