Fowler v. Woodward

• Decision Date: 19 January 1880
• Citation: 4 N.W. 231,26 Minn. 347
• Parties: WILLIAM FOWLER, APPELLANT, v GEORGE WOODWARD, RESPONDENT.
• Court: Minnesota Supreme Court

26 Minn. 347

4 N.W. 231

WILLIAM FOWLER, APPELLANT,vGEORGE WOODWARD, RESPONDENT.

Supreme Court of Minnesota.

Filed January 19, 1880.

Appeal from order of district court, county of Washington, sustaining demurrer to complaint.

J. N. & I. W. Castle, for appellant.

McCluer & Marsh, for respondent.

BERRY, J.

On January 3, 1877, the plaintiff and his wife made a mortgage of two parcels of land to Murphy, to secure two promissory notes which are described in the mortgage as follows, viz.: “One for $500, payable November 1, 1877, and the other for $2,000, payable February 1, 1880, bearing ten per cent. interest per annum from date until paid; interest payable annually on the first day of February of each year.” The mortgage contains the usual power of sale, and the provision following, namely: “It is further agreed that if default be made in payment of said note due November 1, 1877, with interest, or in the payment of any of the instalments of interest due quarterly, as provided herein, then and in that case the said second party shall have the right to elect and declare that the whole sum then due or secured thereby shall be deemed as then due and payable.”

Murphy, the mortgagee, assigned the mortgage to the defendant, who commenced to foreclose the same by advertisement. The notice of sale, which is dated February 17, 1879, claims that at that date there is due upon the mortgage the sum of $2,203.33.

This action is brought to enjoin the sale. The complaint alleges that the $500 note has been paid and taken up; that the interest on the $2,000 note up to February 1, 1878, has also been paid, and that there is due upon the $2,000 note the sum of $200 only, being interest thereon for the year ending February 1, 1879. The defendant, in his advertisement, evidently proceeds upon the theory that the provision which we have quoted from the mortgage authorizes him to declare the whole mortgage debt to be due upon default in the payment of the annual interest on the $2,000 note.

The plaintiff claims, and this is one of the grounds upon which he asks an injunction, that this provision has reference to a default in the payment of interest due quarterly, and, therefore, does not refer to the interest upon the $2,000 note, which falls due annually.

After authorizing the mortgagee to declare the whole mortgage debt to be due in case of default in the payment of the principal and interest of the $500 note, both of which became due in nine months from...