Fletcher v. Daugherty
| Decision Date | 31 August 1882 |
| Citation | 13 N.W. 207,13 Neb. 224 |
| Parties | HENRY E. FLETCHER, PLAINTIFF IN ERROR, v. MATTHEW A. DAUGHERTY, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Saline county. Tried below before WEAVER, J.
Reversed.
Dawes & Foss, for plaintiff in error.
Note and mortgage should be construed together. 1 Jones on Mortgages, sec. 76. Muzzy v. Knight, 8 Kan. 456. Kennion v. Kelsey, 10 Iowa 443. Mortgage subject to conditions of note. 1 Hilliard on Mortgages, 286. 2 Jones on Mortgages, 902. Tender unavailing. Saunders v Frost, 5 Pick. 267. Graham v. Linden, 50 N.Y. 547.
Hastings & McGintie and M. B. C. True, for defendant in error.
The construction of note and mortgage must be such as to give effect to the terms of each. 2 Parsons Cont., 501. National Bank v. Peck, 8 Kan. 662. Schoonmacker v. Taylor, 14 Wis. 313. Stipulation may be taken advantage of by mortgagor as well as mortgagee. National Bank v. Peck, 8 Kan. 662. Pope v. Hooper, 6 Neb. 180. Stanclift v. Norton, 11 Kan. 218. Robinson v. Loomis, 51 Penn. State, 78.
In April, 1881, the plaintiff commenced an action before a justice of the peace of Saline county, upon the following instrument:
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 case is brought into this court by petition in error.
I. 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 twelve 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 should 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 thirty 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 evident 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 limitation will not commence to run against the note until the expiration of five years from its date. Whether in a proper case a mortgagor may plead his own default as a defense in the action it is unnecessary to determine.
In the case of The...
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