The New England Mortgage Security Company v. Casebier

• Decision Date: 01 May 1896
• Docket Number: 121
• Citation: 3 Kan.App. 741,45 P. 452
• Parties: THE NEW ENGLAND MORTGAGE SECURITY COMPANY v. JOHN W. CASEBIER et al
• Court: Kansas Court of Appeals

45 P. 452

3 Kan.App. 741

THE NEW ENGLAND MORTGAGE SECURITY COMPANY v. JOHN W. CASEBIER et al

No. 121

Court of Appeals of Kansas, Northern Department, Central Division

May 1, 1896

Error from district court, Osborne county; Cyrus Heren, Judge.

Opinion Filed June 4, 1896.

MEMORANDUM.--Error from Osborne district court; CYRUS HEREN judge. Action by The New England Mortgage Security Company against John W. Casebier and others to recover on a note and mortgage. Judgment for defendants. Plaintiff brings the case to this court. Affirmed. The opinion herein, filed June 4 1896, states the material facts.

Judgment affirmed.

Henry C. Flower, and George H. McCrary, for plaintiff in error.

Robinson & McBride, for defendant in error Jacob M. Kepple.

GARVER J. All the Judges concurring.

OPINION

GARVER, J.:

This action is based upon a note and mortgage. The only question presented for consideration is as to the amount of interest which the plaintiff is entitled to recover. The note provides:

"With interest from date until paid at 7 per cent. per annum, as per coupons attached. . . . On failure to pay interest within five days after due, the holder may collect the principal and interest at once, and as stipulated in the mortgage made to secure this note."

The mortgage, after the usual conditions, and after reciting the obligation of the mortgagor to pay the principal with interest thereon from date until paid at the rate of 7 per cent. per annum, contains the following:

"In case of default of payment of any sum herein covenanted to be paid, for the period of five days after the same becomes due, or any default of performance of any covenant herein contained, the said first parties agree to pay the said second party and its assigns interest at the rate of 12 per cent. per annum, computed annually on said principal note, from the date thereof to the time when the same shall be actually paid."

In case of default and foreclosure, may the plaintiff recover according to the terms of the mortgage, interest at the rate of 12 per cent. from date, or is he limited to the 7 per cent. expressed in the note? The two instruments constitute parts of one contract. (Muzzy v. Knight, 8 Kan. 456.) But the note is the evidence of the debt, and is the principal obligation of the debtor, the mortgage being simply incidental thereto; and in case of variance or repugnance in their respective conditions or terms, the note will control. (Hutchinson v. Benedict, 49 Kan. 545, 31 P. 147; Keys v. Lardner, 55 id. 331.) Were it not for the reference made in the note to the...