McCauley v. Leavitt

• Decision Date: 04 June 1894
• Docket Number: 439
• Citation: 10 Utah 91,37 P. 164
• Court: Utah Supreme Court
• Parties: C. A. H. McCAULEY, APPELLANT, v. JOHN Q. LEAVITT, CYNTHIA LEAVITT, FRED J. KEISEL AND JULIE KEISEL, RESPONDENTS

37 P. 164

10 Utah 91

C. A. H. McCAULEY, APPELLANT, v. JOHN Q. LEAVITT, CYNTHIA LEAVITT, FRED J. KEISEL AND JULIE KEISEL, RESPONDENTS

No. 439

Supreme Court of Utah

June 4, 1894

APPEAL from the district court of the fourth judicial district, Hon James A. Miner, Judge.

Action by C. A. H. McCauley against John Q. Leavitt, et al., to foreclose a mortgage on real estate. From the judgment for plaintiff for the principal sum and interest to the day of maturity, but refusing to allow interest to the day of trial and attorneys' fees provided in the note, he appeals.

Reversed and remanded.

Messrs Evans & Rogers, for appellant.

The note was payable at the First National Bank of Ogden, Utah. Respondents' obligation was to be ready and willing to pay at that place. Not having done so, default occurred, and never having before the commencement of the suit offered to pay the actual amount due, appellant was entitled to have the contract contained in the note, fully performed, to receive the interest then due and have allowed him a reasonable sum as costs of collection or attorneys' fee and costs of suit. Edwards on Bills and Notes, par. 663-4, and cases cited in note 4; Washington v. Bank, 1 How. (Miss.) 230; S. C. 28 Am. Dec. 333; Wallace v. McConnell, 13 Peters, 136; Reeve v. Peck, 6 Mich. 239; Montgomery v. Tufts, 11 Cal. 307, 317; Walcott v. VanSantvoord, 17 Johns. 248; Foden v. Sharp, 4 Johns. 183; Caldwell v. Cassady, 8 Cowen, 271; Hills v. Place, 48 N.Y. 520; Howard v Boorman, 17 Wis. 479; Ruggles v. Patton, 8 Mass. 480; Weed v. Van Houten, 4 Hal. 189; Eastman v. Fifield, 3 N.H. 333; McNairy v. Bell, 1 Yerger, 502; Bank of U. S. v. Smith, 11 Wheat. 171; Haxton v. Bishop, 3 Wend. 13; Brabston v. Gibson, 9 How. 263; Brown v. Pratt, 2 Cranch. (C. C.) 253; Beverly v. Beverly, 2 Cranch. (C. C.) 470; Bank of U. S. v. Bussard, 3 Cranch. (C. C.) 173.

Mr. A. R. Heywood and Mr. V. Gideon, for respondents.

According to Keisel's information, the note contained no place of payment, and therefore it was his duty to seek the payee to make a tender, but he was not bound to seek him beyond the limits of the territory. 2 Jones on Mort. § 897; Gill v. Bradley, 21 Minn. 16. When a mortgagee has removed from the state and left no one within it to receive the interest and installments as they become due, the mortgagor is relieved from any obligation to make a tender. Haubie v. Volkening, 49 How. Pr. 169; Hale v. Patton, 60 N.Y. 233; Southworth v. Smith, 7 Cush. 391. The record of the mortgage did not show the terms of the note. "The rights conveyed by a conveyance are as to subsequent purchasers without notice to be determined by the instrument itself as recorded and not by facts in pais or other instrument not recorded." Disque v. Wright, 49 Ia. 541.

BARTCH, J. MERRITT, C. J., and SMITH, J., concur.

OPINION

BARTCH, J.:

This is an action to foreclose a mortgage on real estate, given as security for the payment of a note. As appears from the record, John Q. Leavitt and Cynthia Leavitt, his wife, made and delivered to the plaintiff, on the 13th of April, 1889, a promissory note for $ 1,200, due in six months after date. This note was, by its terms, payable in United States gold coin, at the First National Bank of Ogden, Utah, and contained a provision for 10 per cent. additional, for collection, in case the note was not paid at maturity. The note was secured by mortgage on real estate, and the mortgage was placed on record. Afterwards, on August 13, 1889, Fred J. Keisel purchased the land, subject to the mortgage, but had no opportunity to examine the note itself; and the copy of the note, as it appeared from the record of the mortgage, designated no place of payment, nor did it contain the clause for payment in United States gold coin, or for the 10 per cent. additional for cost of collection. It also appears that the payee of the note was absent from the territory at the time of maturity, and until suit was brought. Keisel was able and ready to pay the note at maturity, and, it appears, used reasonable diligence to ascertain the whereabouts of the payee and the note, but was unable to do so. About six months after maturity he went to the bank, taking with him $ 1,272, amount of the principal and interest, to date of maturity, intending to pay the note, but upon inquiry found it was not there, and then made no tender; nor did he make a tender at the place of residence of the maker. On this state of facts and circumstances the court rendered judgment against the defendants John Q. Leavitt and Cynthia Leavitt for $ 1,200 and interest thereon to the date of the maturity of the note, and the plaintiff appealed from the judgment.

The first material question to be determined is whether under the circumstances of this case, the defendants, as is contended by their counsel, were excused from making a tender of the money at maturity, and, therefore, exempt from the payment of interest after maturity, and from costs of collection. The note was, by its terms, payable at the First National Bank of Ogden, and the makers must be held to have knowledge of the...