Fletcher v. Daugherty

• Decision Date: 31 August 1882
• Parties: FLETCHER v. DAUGHERTY.
• Court: Nebraska Supreme Court

13 Neb. 224

13 N.W. 207

FLETCHER

v.DAUGHERTY.

Supreme Court of Nebraska.

Filed August 31, 1882.

Error from Saline county.

Dawes & Foss, for plaintiff.

Hastings & McGintie, for defendant.

BY THE COURT.

In April, 1881, the plaintiff commenced an action before a justice of the peace of Saline county upon the following instrument: “$30. April 1, 1881, I promise to pay H. E. Fletcher, or order, $30, being interest to that date on my note for $500. This interest note draws 12 per cent. per annum from maturity. MATT. A. DAUGHERTY.” On the return-day of the summons the defendant appeared in open court and tendered the sum of $535, being the amount due upon the note and mortgage for which the interest note was given, and costs to that date. The plaintiff refused to accept the tender in that form, and judgment was rendered by the justice in his favor for the sum of $30.25 and costs. The defendant appealed to the district court, where the judgment of the justice was reversed and the action dismissed. The cause is brought into this court by petition in error. It appears from the record that on the first day of April, 1879, the defendant executed a note to the plaintiff for the sum of $500, due in five years, with interest at 12 per cent., payable semi-annually, and also executed coupon notes for the interest as it should become due, and to secure the payment of the principal and interest executed a mortgage upon certain real estate. The mortgage contains this provision: “Provided, also, that on default in payment of any part of said principal or interest or taxes, as the same shall become due, the whole of the moneys hereby secured shall become payable immediately upon such default.” The note contains the following provision: “And upon a failure to pay any of said interest within 30 days after due, the holder may elect to consider the whole note due, and it may be collected at once.”

The note and mortgage were made at the same time, in relation to the same subject-matter, and must therefore be construed together. By construing them together as parts of one contract it is very evidence that the provisions of the note control those of the mortgage, The holder of the note in case of default may elect to consider the note due. Unless he do so, and in some manner signify the same, the statute of limitations will not commence to run against the note until the expiration of five years from its date. Whether in a proper case a mortgageor may plead his...