Grootemaat v. Bertrand
| Decision Date | 05 April 1927 |
| Citation | 192 Wis. 519,213 N.W. 294 |
| Parties | GROOTEMAAT v. BERTRAND ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Milwaukee County; E. T. Fairchild, Judge.
Mortgage foreclosure suit by A. L. Grootemaat against Susan A. Bertrand and another. From a judgment dismissing the complaint, plaintiff appeals. Reversed and cause remanded.--[By Editorial Staff.]Roehr & Steinmetz, of Milwaukee, for appellant.
Timothy J. Hannan, of Milwaukee, for respondents.
This is an action to foreclose a mortgage executed by the defendants to the plaintiff May 29, 1925, to secure the payment of the sum of $17,000. The mortgage provided that in case of default on the part of the mortgagors in keeping and performing the covenants and conditions of the mortgage continuing for a period of 60 days, “the whole amount of the said principal sum remaining unpaid, together with the interest, and all sums so paid by the mortgagee or his heirs or assigns, and interest thereon as aforesaid, shall, at the option of said mortgagee, his heirs or assigns, be deemed to have become due without notice, notice of such option being hereby expressed waived.”
The mortgagors defaulted in the payment of taxes February 1, 1926, and in the payment of an installment of interest amounting to $510, which became due and payable May 29, 1926. This action was commenced on September 8, 1926. On September 28, 1926, defendants paid the taxes for the year 1925, but plaintiff was not notified thereof until the trial. In November, 1926, after notice of application for judgment had been served, defendants offered to pay the interest together with the taxable costs, and at or before the time of trial the interest installments due in May and November, 1926, were paid by the defendants to the clerk of the court. The court adjudged and decreed “that by reason of the tender and the payment to the clerk in open court of the sum of $1,020 as interest, and the further sum of $185 as solicitor's fees, and the further sum of $60.50 as taxable costs, the defaults alleged by plaintiff in his complaint have been cured and the parties to this action have been placed in the position they were before the commencement of said action,” and dismissed plaintiff's complaint. This appeal is from that judgment.
[1] It is stated in appellant's brief that the trial court regarded the option provision of the mortgage as a penalty and considered that it was within the equitable power of the court to relieve the defendants from the forfeiture upon their making good their defaults. While this proposition is not urged by the respondents to sustain the judgment, it may be said that such provisions are neither penalties nor forfeitures. They are merely conditions of the contract entered into by the parties. They result only in an acceleration of the time of payment. The duties and obligations of the mortgagors remain the same. They must pay that which the mortgage was given to secure. But by reason of the terms of their own contract the time of payment is hastened. 41 Cor. Jur. p. 14; Stern v. Rainier, 193 Iowa, 665, 187 N. W....
To continue reading
Request your trial
-
Mutual Federal S & L Ass'n v. Wisconsin Wire Works
...It is argued, however, by the appellants that the clause is not contrary to the public interest. We agree. In Grootemaat v. Bertrand (1927), 192 Wis. 519, 213 N.W. 294, the court enforced an acceleration clause that provided the entire mortgage debt would be due and payable upon a default. ......
-
Kamaole Resort Twenty-One v. Ficke Hawaiian Investments, Inc.
...policy a provision permitting the holder of a note to accelerate its maturity upon nonpayment of interest. Cf., Grootemaat v. Bertrand, 192 Wis. 519, 213 N.W. 294 (1927). No tenable reasons have been presented why increased interest after an accelerated maturity should be regarded different......
-
Cmty. First Credit Union v. Bogenschneider, 2014AP637.
...Note, which the mortgage explicitly incorporated, Bogenschneider waived his right to notice of acceleration. See Grootemaat v. Bertrand, 192 Wis. 519, 522, 213 N.W. 294 (1927) (“[T]here is no room for requiring ... notice [where] it is expressly provided that no such notice shall nor need b......
- Ætna Life Ins. Co. v. Schmiedeke