Hunt v. Harding

• Court: Indiana Supreme Court
• Writing for the Court: Perkins, J.
• Citation: Hunt v. Harding, 11 Ind. 201 (Ind. 1858)
• Decision Date: 03 December 1858
• Parties: Hunt and Others v. Harding

11 Ind. 201

Hunt and Others v. Harding

Supreme Court of Indiana

December 3, 1858

A Petition for a Rehearing of this case was Overruled.

From the Marion Circuit Court.

The judgment is affirmed, with 1 per cent. damages and costs.

N. B Taylor, for appellants.

The counsel for the appellants made the following points:

I. In every mortgage, like the one in this case, there are what may be termed two securities--first, the personal security or obligation to pay the debt, which is the notes; second, the landed security. The personal security, that is, the notes may be resorted to and their collection enforced by suit without affecting the landed security. The landed security may be altogether waived without affecting the personal security, and the mortgagee may resort to the one before proceeding to enforce the other. These principles are so obvious and well settled as not to require authority. But see Stevens v. Dufour, 1 Blackf 387; 2 R. S. 1852 p. 177, § 640.

II. The time when, or at what time, a mortgage becomes forfeited so as to authorize proceedings to make the land security available, depends alone upon the terms of the mortgage. 2 R S. p. 176, § 631.--Mussina v. Bartlett, 8 Porter (Ala.) 284.--Andrews v. Jones, 3 Blackf. 440.--Burton v. Tannehill, 6 id. 470.

III. Section 637, 2 R. S. p. 176, does not prohibit or restrain the parties to a mortgage from making their own covenants or conditions, but must be construed with § 631, and applies only to such mortgages as by their terms are forfeited on the non-payment of a single note, so as to authorize proceedings to make the landed security available. 3 Blackf. 440.--8 Porter (Ala.), 284.

IV. At common law, a bond or mortgage given to secure the payment of a sum of money by installments, might be proceeded upon on the non-payment of a single installment, for the whole amount, and judgment for the whole amount obtained, unless the case came within the equity of 4th and 5th Anne. But it must be borne in mind that by the express terms of these instruments, the failure to pay a single installment absolutely forfeited the instrument; and in the one case the whole penalty became due, and in the other the estate became absolute. 3 Blacks. Com. 435; Land v. Harris, 1 Strange 515; 2 Strange 814, 927. Bonafous v. Rybot, 3 Burr. 1370; Leveridge v. Forty, 1 M. & S. 706; Adams v. Essex, 1 Bibb. 149; Lansing v. Capron, 1 Johns. Ch. 617; Andrews v. Jones, 3 Blkf. 440; Caufman v. Sayre, 2 B. Mon. 204.

V. The language of this mortgage is, "to secure the payment, when they shall become due, of five promissory notes." "When," in this connection, means "at the time," or "after the time." It is only in one of these two senses it can be used. "They" denotes "the things" spoken of; as, in this case, "the five promissory notes;" and it denotes the five promissory notes spoken of, not separately or singly, but as a whole or entirety. "Become," in its connection, means "shall be," or "come to be." The words "when" and "as" are not synonymous. The adverbial phrase "when as" is sometimes used, and means "at the time when," "what time;" but this is not to the point. But suppose "when" to have the same meaning in the sentence as the word "as." "As," in itself, does not, any more than the word "when," have a several signification, and put in the place of "when," its plain and proper meaning is nothing more nor less than "at the time," or "at the same time;" it is not "at the times," "at the same times," nor "at the time they severally." The word "as" in the sentence would not admit of that several meaning; the word "when" will certainly not. The word "severally," or some equivalent, has, in either case, to be supplied by intendment. The mortgage is, therefore, given "to secure the payment of notes, when (at the time, or after the time,) they (the five promissory notes,) become (shall be, or come to be,) due." The mortgage, then, is only forfeited so as to authorize proceedings to make the landed security available, that is, to foreclose the mortgage and obtain an order for the sale of the land at the time the five promissory notes come to be due; for the mortgage, by its terms, has fixed a single time in the future, and one time only, when the landed security is to become available; and that single period of time is at or after the time that the five promissory notes, as a whole, come to be due; and that one time can happen at one period only, that is, when the last note is due.

VI. This view does not conflict with any of the decisions of the Supreme Court of this state. The cases in which the question is supposed to have been decided are, Cecil v. Dynes, 2 Ind. 266; Greenman v. Pattison, 8 Blackf. 465; and The State Bank v. Tweedy, id. 447.

In the case of Cecil v. Dynes, the question was not made. Smith, J., who delivered the opinion of the Court, says: "There is no brief for the defendant in error on file; and we are not informed upon what grounds the bill was held by the Court to be insufficient." But the terms of the mortgage precluded the question altogether. The allegation in the bill was, "and your orator further represents that the said Dynes, to secure to your orator the payment of said sum of 1,562 dollars 87 cents, according to the tenor and effect of said notes or writing obligatory, executed to your orator," &c. The proviso in the mortgage was, "that if the said Dynes shall well and truly pay to said Cecil the full and just sum of 1,562 dollars 87 cents, &c., in manner particularly specified in three several notes or obligations bearing even date herewith, executed by me to the said Cecil, that then, and from thenceforth, these presents shall be void, else to remain in full force." See Trans. on file in Clerk's office of Supreme Court.

To the same effect is the case of Greenman v. Pattison. The question before the Court was, whether the act of 1843, concerning mortgages, contemplated a sale of the whole of the mortgaged premises where only a part of the debt was due, unless it would be "most beneficial" to both parties. The proviso in this case was, "that if the said Charley F. Greenman, his heirs, &c., do well and truly pay, or cause to be paid, to the said Thomas J. Pattison, his executors, &c., the said debt of 400 dollars, with interest, within the time above limited, without any defalcation or further delay, then, and from thenceforth, the said indenture, and all the estate thereby granted, shall cease, and be absolutely void and of none effect, anything thereinbefore contained to the contrary notwithstanding; but in case of failure on the part of the said Greenman to make the payments aforesaid, or either of them, the said indenture or mortgage, and the estate thereby granted, to be and remain absolute and in full force and virtue in law." See Trans. on file in Clerk's office of Supreme Court.

In the case of The State Bank v. Tweedy, there were five notes, payable at different times, secured by the mortgage. The payee assigned three of the notes to A., and he afterwards assigned the other two to B., who had no notice of the previous assignment to A. The notes assigned to B. became due before the others. The question before the Court was, in what order were these notes payable out of the fund arising from the sale of the mortgaged premises. The Court decided that they were payable according to the order of time in which they fell due, without any reference to the notice of assignment. The proviso in the case of The State Bank v. Tweedy, is almost verbatim the same as that in the case of Greenman v. Pattison. See Trans. on file in Clerk's office of Supreme Court.

These cases are, therefore, entitled to no weight in the decision of this question. By the express terms of the mortgage in each, a failure to pay a single note worked an absolute forfeiture, so as to authorize proceedings to make the landed security available.

(2) Counsel for the appellee argued as follows:

The third error assigned is, we have no doubt, the one on which the appellants rely. They contend that the phrase in the mortgage, "to secure the payment when they [the notes] become due," means, to secure the payment of all the notes when the last becomes due.

This construction singularly perverts the language employed. How could the mortgage secure the payment of the notes when they became due, unless it secured the payment of each note when it became due; or, in other words, the payment of the notes when they respectively became due? The construction of the appellants would be, that securing payment of notes falling due at different periods, is securing the payment of the last when it becomes due, and all the rest after they become due.

Suppose a testator having children of the ages of one, five, ten, and twenty years respectively, were to provide by his will that they should have 1,000 dollars each when they became of age would any body contend that the eldest should not receive his 1,000 dollars until the youngest had...