May, 1900, unless by force, upon the contingency mentioned, of the exercise of the option of the trustees, as specified in the clause just quoted. There is nothing in the case to show that the trustees have in any manner elected that these principal moneys shall become due by reason of the default in the payment of the interest due upon the bonds. The consequence, then is that, as the case stands before the court, these principal moneys must be regarded as not due until the year 1900. Now, it is clear that the effect of the present decree is to divert at once the lien of this encumbrance on the land, and to make these moneys payable forthwith; and this is done by force of the act of 1870, in which the decree takes root. The inquiry arises, therefore, Has the legislature the competency to produce such a result? I have failed to find an affirmative answer to this question. It is certain, in a contract for a loan of money, the time fixed for repayment is a material matter; so that, to hasten or postpone such a period, is to alter such contract in point of substance. If I lend a sum of money on a credit of ten years, it seems certain that I cannot be compelled, to accept repayment at any period short of the time so fixed, by force of any legislative act which can subseqnently be framed. The constitution of the State, if it be of any avail, must annul any such law. This proposition is so plain it will not bear discussion. And it likewise seems equally plain that it applies, with its entire force, to the facts now presented. The money is not due on this mortgage, except at the will of the trustees, for over twenty years. This act of the legislature was passed after the making of the mortgage; and yet this act, entering into the decree appealed from, has directed a sale of the property to pay this money forthwith. If this statute authorizing, in case of the insolvency of corporations of this class, the appointment of a receiver and the sale of the corporate property free from all encumbrance, had been in existence at the time of the execution of this mortgage, an entirely different problem would have been presented for solution. In such a condition of things, it might well be held that such a provision of the general law would enter into the substance of the contract, and become a part of it; this would be in harmony with practice

and theoretical principles. But the law now in question, and which, by the form in which the case has been put, is the only statute now applicable, was not enacted at the time these parties agreed for this term of credit; and the consequence is, if it is to prevail against this stipulation, its action in effecting such a result must be quite arbitrary.”

1. See Leonard v. Tyler, 60 Cal. 299; Heath v. Hall, 60 Ill. 344; Princeton Loan & Trust Co. v. Munson, 60 Ill. 371. In Noonan v. Lee, 2 Black (U. S.), 499, it was held that notice of such election must be given before the filing of the bill. It is not unusual for mortgages and deeds of trust to contain special clauses providing that, upon default in the payment of taxes, or instalment of interest, the entire debt shall at once become due, and a sale of the property be made for its payment. Such provisions in mortgages are enforceable by foreclosure proceedings immediately upon such default. Pope v. Durant, 26 Iowa, 233; Stanhope v. Manners, 2 Eden. 197; Jones v. Lawrence, 18 Ga. 277; Goodman v. C. & C. R. Co., 2 Disney (Ohio), 176; Smart v. McKay, 16 Ind. 45; Andrews v. Jones, 2 Blackf. (Ind.) 440; Stillwell v. Adams, 29 Ark. 346; Grattan v. Wiggins, 23 Cal. 16; Mobray v. Leckie, 42 Md. 474; Morgenstern v. Klees, 30 Ill. 422; Magruder v. Eggleston, 41 Miss. 284; Lowenstein v. Phelan, 17 Neb. 429; Fulgham v. Morris, 75 ́Ala. 245. It is held that such provisions are not in the nature of penalties, but agreements as to the event upon which the debt shall mature. Andrews v. Jones, 3 Blackf. (Ind.) 444; Richard v. Holmes, 18 How. (U. S.) 143. Courts of equity will not relieve against such provisions, except upon grounds of fraud, accident, or mistake. Bennett v. Stevenson, 53 N. Y. 508; Noyes v. Clark, 7 Paige (N. Y.), 179. Nor will it be relieved against by the mortgagor paying into court such accrued instalment. Ferris v. Ferris, 28 Barb. (N. Y.) 29. It is not necessary to wait for the maturity of the debt before proceeding to foreclose and have a sale of the property, when it is payable in instalments. The default in the payment of any instalment gives the right to immediate foreclosure, unless the terms of the mortgage itself, either expressly or by implication, repels this construction; and it must be construed most strongly against the mortgagor. So held where the mortgage debt was evidenced by a writing, in form

of a promissory note, by which mortgagors were to deliver 24 bales of cotton, in three annual instalments of 8 bales each, and the mortgage, setting out this note provided, "that, if we [they] pay the said note on or before the same becomes due," with costs of recording, the mortgage to be void; "but if we [they] fail to pay said sum when due," the mortgagee was authorized to take possession of any or all of said property, and sell the same at public outcry for cash; and, out of the proceeds, after pay ing costs and expenses, and all costs of collecting, to pay "the amount, with interest, that may be due on the debt above mentioned," and residue to mortgagors. Johnson v. Buckhaulls, 77 Ala. 276. And, where the breach of the condition was the failure to pay interest on the debt secured, the foreclosure may be had, although the mortgage does not provide for the foreclosure for such default. Scheibe v. Kennedy, 44 Wis. 564.

Where the deed of trust provides for the immediate maturity of the whole debt in case of default in payment of interest upon it, at the opiton of the creditor, and the creditor exercises this option upon such default, a tender of less than the whole debt will not prevent the enforcement of the trust for the entire debt. Detweiler v. Breckenkamp, 83 Mo. 45.

Where a mortgage provided that all the notes might be declared due on default in the payment of any one of them, the fact that the payment of one of the notes depended upon the mortgagee procuring an outstanding portion of the title for the mortgagor will not prevent the mortgagee from declaring such note due on the mortgagor's failure to pay any of the prior notes within the time specified in the mortgage, these prior notes being subject to no conditions. And, upon his so declaring, a sale may be had for the entire debt. Wisnel v. Chamberlin, 117 Ill. 568.

Where a mortgage purported to be for money loaned, payable on demand" by a printed clause, with written condition that interest should be paid semiannually, and, on failure so to do, a foreclosure might be had for both principal and interest; with a further provision that, on death of mortgagee the money loaned should belong to the mortgagor, if living, and, if not, to her surviving children, and that the mortgage should thereupon become null and void, a foreclosure cannot be had so long as the interest is paid as stipulated. And, when diligent effort to pay promptly is shown,

whether prevented by

unavoidable

causes or by act of the mortgagee, a default and consequent forfeiture cannot be maintained. So held in Bolman v. Lohman, 79 Ala. 63.

While the proceeds of a foreclosure sale must be applied in the order of their maturity, where several notes, secured by mortgage, mature at different times, yet where the whole mortgage debt becomes at once due, by the terms of the mortgage, upon any default in payment, the several holders are entitled to have the proceeds applied pro rata. Marine Bank, 9 Wis. 57, distinguished; Pierce v. Shaw et al., 51 Wis. 316.

Where the mortgage provides that, on default in payment of any one of a series of notes secured by it, and which were payable at different times, "then each and all shall fall due, and this mortgage become absolute as to all said notes remaining unpaid at the happening of such default," such stipulation relates to the remedy by foreclosure, or other proceedings under the mortgage, and foreclosure may be had for the whole debt upon the default. The stipulation is for the advantage of the mortgagee, as a remedy on the mortgage; but does not vary or extinguish the obligations of the notes themselves for general purposes; and therefore, to charge indorsers, demand and notice must be made at the maturity of the notes, as provided for in the notes themselves. McClelland v. Bishop, 42 Ohio St. 113.

It is not essential that the instrument should provide in express terms that the whole debt shall become due upon default in respect to any instalment; to give it that effect, if such intention can be gathered from the whole instrument. it will be enforced accordingly. Durant, 26 Iowa, 233.

v. Rebman, 9 Iowa 114.

Pope v.

See also Kramer

In Gladwyne v. Hitchman, 2 Vern. 411, it was held that the right of foreclosure as to the entire debt existed because of default in respect to payment of interest, although no clause stipulating for such right was contained in the mortgage. See also Edwards v. Martin, 25 Law J. (U. S.) Ch. 284; Burrows v. Mollory, 2 Jones & La. T. 521.

Where the decree for sale of the entire property to pay an instalment which was past due provided that a lien should be retained on the property to secure the unmatured instalments, and the mortgagee became the purchaser at the sale, it was held that this operated as a satisfaction of the entire debt, and that an action at law could not be maintained on

the notes. Mines v. Moore, 41 Ill. 273; Weirner v. Heintz, 17 Ill. 259; Hughes v. Frisby, 81 Ill. 188.

Where the mortgagee, proceeding to foreclose upon an instalment due, has a sale of the entire estate, this will of course release the security as to the amounts not due. Smith v. Smith, 32 Ill. 198: Poweshiek v. Dennison, 36 Iowa, 244. The right to sell for non-payment of taxes arises when the mortgagee has himself paid the taxes, and the mortgagor has failed to reimburse him. Williams v. Townsend, 31 N. Y. 411. There may be conduct on the part of the mortgagee which will operate as a waiver of his right to enforce a foreclosure for the whole debt before its maturity; as, where he accepts the interest after the default has occurred,-Sire v. Weightman, 25 N. J. Eq. 102;-or where he has refused to receive the amount when tendered, -Ewart v. Irwin, I Phila. 78; 7 Leg. Int. 134;-or where the failure to pay promptly was occasioned by his own conduct,-McCotter v. De Groot, 19 N. J. Eq. 531.

Where a mortgage was given on land to secure $500, and lawful interest thereon, which amount had been retained by the mortgagor, on a sale of the land to him to the mortgagee, out of the purchasemoney, as an indemnity against an alleged right of dower in the land, the principal debt to be paid only on the extinguishment of the claim, the mortgage may be foreclosed for arrears of interest, although the dower claim has not been extinguished; and the dower claimant is not a necessary party to the foreclosure suit. Van Doren v. Dickerson et al., 33 N. J. Eq. 388.

The mortgagor is not entitled to days of grace on instalments of interest; and where the mortgagee had his option to declare the whole debt due, upon default of payment of the interest, within ten days after it became due, and it was to become due on the first day of a certain month, notice of his option given on the twelfth of the month was given at the proper time. Macloon v. Smith, 49 Wis.

200.

Where the principal debt becomes due pendente lite, in an action to foreclose

mortgage for default in payment of interest, the judgment should be for the whole amount of debt and interest. Cooke v. Pennington, 15 S. Car. 185.

um

1. Gillett v. Balcom, 6 Barb.(N.Y.) 370. 2. Lewis v. Richey, 5 Ind. 152; Ketchv. Jauncey, 23 Conn. 123: Grant v. Ludlow, 8 Ohio St. 1; Planters Bank v. Douglas, 2 Head (Tenn.), 699; Holmes v. Rhodes, 1 Bos. & Pul. 638; Penny v. Foy, 8 Barn. & Cress. II; Thomas v. Allen, I Hill (N. Y.). 145; Hodgsden v. Bell, 7 T. R. 97; Tilford v. James, 7 B. Mon. (Ky.) 837; Forbes v. McCoy, 15 Neb. 632, which holds also that mortgage given after mortgagee became surety will not be presumed to be without consideration.

See Pond v. Clarke, 14 Conn. 334; Francis v. Morter, 7 Ind. 213; Butler v. Le Dewey, 12 Mich. 178; National State Bank v. Davis, 24 Ohio St. 190, 195; Ohio Life Ins. & T. Co. v. Reeder, 18 Ohio, 35, 46; McConnell v. Scott, 15 Ohio, 401: s. c., 45 Am. Dec. 583; Cramer v. Farmers & Mechanics' Bank of Steubenville, 15 Ohio, 253; Colvin v. Buckle, 8 Mees. & W. 680. Because where a surety receives a mortgage indemnifying him against all loss. costs, or damage, the condition of such mortgage is not broken until after such security has been obliged to pay the debt or some part of it. See Platt v. Smith, 14 Johns. (N. Y.) 368; Howell v. Smith, 8 Johns. (N. Y.) 249; Rodman v. Headden, 10 Wend. (N. Y) 500; Pond v. Clark, 14 Conn. 334; Shepard v. Shepard, 6 Conn. 37; McLean v. Ragsdale, 31 Miss. 71; Colvin v. Buckle, 8 Mees. & W. 680. Also Beckwith v. Windsor Mfg. Co., 14 Conn. 594. But where a surety has been compelled to pay the whole or part of the debt, he may maintain an action to foreclose before his

damage is ascertained. See Rogers v. Jones, 1 McC. (S. C.) Eq. 221.

Where an indemnity mortgage is given to secure against damages occasioned by neglect or misconduct, and action to foreclose cannot be maintained until after judgment for such negligence or misconduct: See Grant 7. Ludlow, 8 Ohio St. I. See also Tilford v. Janes, 7 B. Mon. (Ky.) 337; Planters' Bank v. Douglass, 2 Head (Tenn.), 690.

1. Hall v. Nash, 10 Mich. 303; Thurston v. Prentiss, I Mich. 193; Butler v. La Due, 12 Mich. 173; Francis v. Porter, 7 Ind. 213; Ellis v. Martin, 7 Ind. 652. In an indemnity mortgage containing an express agreement of mortgagor to pay the debt, upon his failure to pay on maturity of the debt, and his liability has been ascertained and fixed, the mortgagee may at once, without having paid the debt, or any part of it, foreclose, and recover therein, as damages, compensation for the total probable loss. Reynolds v. Shirk, 98 Ind. 480.

Indemnity Mortgage. The lapse of time, which is generally the criterion by which the right to foreclose is usually determined, does not govern in the case of an indemnity mortgage. See Ellis v. Martin, 7 Ind. 652; Francis v. Porter, 7 Ind. 213; Lewis v. Ritchey, 5 Ind. 152; Butler v. Landue, 12 Mich. 173; Dye v. Mann, 10 Mich. 291; Thurston v. Prentis, I Mich. 192. However, in case of an indemnity mortgage, right of action does not accrue until the whole or some part of the mortgage debt has been paid, or the principle has defaulted thereon. Platt. Smith, 14 Johns. (N. Y.) 363; Powel v. Smith, Johns. (N. Y.) 219: Rodman v. Eadjuncy, 23 Conn. 196; Beckwith v. Windsor Mfg. Co., 14 Conn. 594; Bond v. Clarke, 14 Conn. 334; Shepard v. Shepard, 6 Conn. 37; Francis 7. Porter, 7 Ind. 213; McLean v. Ragsdale. 31 Miss. 301; Ohio Ins. & Trust Co. v. Reeder, 14 Ohio. 35; McConnell v. Scott, 15 Ohio. 401; s. c., 45 Am. Dec. 583, Cramer v. Trustees of Farmers & Mechanics' Bank of Steubenville, Ohio, 524.

15

As to When Right to Foreclose Accrues in an Indemnity Mortgage, which contains an express agreement to pay the debt therein described, see Gilbert v. Wynan, I N. Y. 550; s. c., 49 Am. Dec. 359: Wright . Whiting, 40 Barb. (N. Y.) 245: Thomas v. Allen, 1 Hill (N. Y.), 145, overruling Douglass v. Clark, 14 Johns. (N. Y.) 177; Porter v Jackson. 17 Johns. (N. Y.) 239; In re Negus, 7 Wend. (N.

It

Y.) 499; Reynolds v. Shirk, 98 Ind. 480. See also Maylott v. Gough, 96 Ind. 496; Loehr v. Colburn, 92 Ind. 24; Bodkin v. Merritt, 86 Ind. 540; Durham v. Craig, 79 Ind. 117; Gurnell . Cue, 72 Ind. 34; South P. M. Assoc. v. Cutler & S. Lumber Co., 64 Ind. 560; Duvall v. McIntosh. 23 Ind. 529; Johnson v. Britton, 23 Ind. 105: overruling Tate v. Booe, 9 Ind. 13; Veddle v. Stone, 12 Ind. 625; Wilson v. Stillman, 9 Ohio St. 467; s. c., 75 Am. Dec. 477; Holmes 7. Rhodes, 1 Bos. & P. 638; Loosemore v. Radford, 9 Mees. & W. 657; Hodgson v. Bell, 7 T. R. 97.

2. This doctrine is well settled, and fully sustained by the authorities. Moses v. Murgatroyd, i Johns. Ch. (N. Y.) 119, 147; Homer v. Savings Bank, 7 Conn. 478; Jones v. Quinnipiack, 29 Conn. 25; Osborn v. Noble, 46 Miss. 449; Paris v. Hulett, 26 Vt. 308; Breedlove v. Stump, 3 Yerg. (Tenn.) 257; Tilford v. James, 7 B. Mon. (Ky.) 337; Haven v. Foley, 18 Mo. 136; Roberts v. Colvin, 3 Gratt. (Va.) 358; Eastman v. Foster, 8 Metc. (Mass.) 19; Ware v. Otis, 8 Greenl. (Me.) 387; Van Order v. Durham, 35 Cal. 136; Riddle v. Bowman, 27 N. H. (7 Fost.) 236; Kramer's Appeal, 37 Pa. St. 71; Aldrich v. Martin, 4 R. I. 520; Siebert v. Tone, 8 Kan. 52; Rankin v. Wilsey, 17 Iowa, 463; Constant v Matteson, 22 Ill. 546; Moore v. Moore, 4 Hawks (N. Car.), 358; Boyd v. Parker, 45 Md. 182; Ohio L. & I. Co. v. Reeder, 19 Ohio, 46; Safford v. Wade, 51 Ala. 214. In Homer v. Savings Bank, 7 Conn. 478, the court, after reviewing the authorities, say: The principle to be extracted from the cases is this: That, when collateral security is given, or property assigned for the protection or payment of a debt, it shall be made effectual for that purpose; and that not only to the immediate party to the security, but to others who are entitled to the debt. And, to make them thus effectual, a court of chancery will lend its aid. And the reason is that it is the intent of the transaction."

3. The question of payment has most

frequently arisen, under the doctrine of presumption, from lapse of time. The mortgage debt is presumed to have been paid after the lapse of twenty years from the time the right to enforce the mortgage had accrued, without any assertion of the right during that period by the mortgagee, or any recognition of liability on the part of the mortgagor. Hughes v. Edwards, 9 Wheat. (U. S.) 489, where it is said: "In respect to the mortgagee, who is seeking to foreclose the equity of redemption, the general rule is that, where the mortgagor has been permitted to retain possession, the mortgage will, after a length of time, be presumed to have been discharged, by payment of the money, or a release, unless circircumstances can be shown sufficiently strong to repel the presumption; as, payment of interest, a promise to pay, an acknowledgment by the mortgagor that the mortgage is still existing, and the like." White v. Ewer, 2 Vent. 340; Crittenden v. Brainard, 2 Root (Conn.), 485; Reynolds v. Green, 10 Mich. 355; Collins . Torrey, 7 Johns. (N. Y.) 278; Newcomb v. St. Peter's Church, 2 Sandf. Ch. (N. Y.) 636; Wilkinson v. Flowers, 37 Miss. 579: Bacon v. McIntire, 8 Metc. (Mass.) 87; Chick v. Rollins, 44 Me. 104; Bartlett v. Bartlett, 9 N. H. 398; Durham, v. Greenly, 2 Harr. (Del.) 124; Kennedy v. Denoon, 3 Brev. (S. Car.) 476; Stockton v. Johnson, 6 B. Mon. (Ky.) 408; Forsyth v. Ripley, 2 Greene (Iowa), 181; Sweetser v. Lowell, 33 Me. 446; Abbott v. Godfroy, Mich. 178; McQueen v. Fletcher, 4 Rich Eq. (S. Car.) 152; Smith v. Benton, 15 Mo. 371; Martin v. Bow ker, 19 Vt. 526; Crook v. Glenn, 30 Md. 55; Peck v. Mallons, 10 N. Y. 509; Jack son v. Woods, 12 Johns. (N. Y.) 242.

Rebuttal of Presumption of Payment.-The facts and circumstances which may serve to rebut this presumption of pay ment are as various and diversified as human transactions themselves; but they should be of such character as to clearly show some unequivocal recognition of the debt on the part of the mortgagor, or some explanation, of a most satisfactory character, of the failure of the mortgagee to assert the debt during this period; as: That the mortgagor died insolvent before the debt fell due, and the purchaser of his equity also became insol. vent before its maturity, and had removed from the State, and never afterwards returned,-Brobst v. Brock, 10 Wall. (U. S.) 510;—or, an indorsement of credit on a bond, made by the obligee within the period, -Dabney v. Dabney,

2 Rob. (Va.) 622;-or that the debtor had not the opportunity of making payment.-McKindor v. Littlejohn, 1 Ired. (N. Car.) 66; Wood v. Deen, 1 Ired. (N. Car.) 230;-payments by the executor or administrator of the debtor.— Richardson v. Peterson; 2 Harr. (Del.) 366;--the want of a person against whom to bring the suit.-Brice v. Brice, 2 Ired. (N. Car.) 87; Park v. Peck, 1 Paige (N. Y.), 477: Belmont v. O'Brein. 12 N. Y. 394; Stout v. Levan, 3 Pa. St. 235; Eby v. Eby, 5 Pa. St. 435-payment of interest on the debt, or any portion of the principal.--Martin v. Bowker, 19 Vt. 526; N. Y. Life Ins. Co. v. Covert, 3 Abb. Dec. (N. Y.) 350;-that the debtor had removed to and resided in a different State from that of the creditor during the period,--Mann v. Manning, 12 Smed. & M. Ch. (Miss.) 615;-that there was no one, from the death of the mortgagee until administration was granted, who could receive payment and discharge the mortgage,-Abbott v. Godfroy, 1 Mich 178.

Part payment keeps alive the right to foreclose, not only against the party paying, but as against all others adversely interested to the mortgagee. 2 Jones on Mort. (2d Ed.), § 1198.

On the other hand, intervening facts and circumstances may suffice to establish payment within a shorter period than twenty years. Bander v. Snyder, 5 Barb. (N. Y.) 63. The lapse of fourteen years, taken in connection with other circumstances tending to prove payment, "such as having settled an account in the intermediate time without any notice having been taken of such a demand as that now attempted to be enforced were held sufficient. Oswald v. Leigh, 1 T. R. 271, Buller, J. See also Moore v. Smith, 81 Pa. St. 182; Henderson v. Lewis, 9 S. & R. (Pa.) 379. The cases, however, do not militate against the general doctrine that no lapse of time short of twenty years will per se raise the presumption of payment.

Where the mortgage had never been recorded, and where there was an indorsement indicating that nearly all the entire amount had been paid, and some evidence of a counter-claim that would have extinguished it, and the mortgagee had died twenty-nine years before the foreclosure suit was instituted, and no attempt to procure administration, or any steps or effort to enforce the mortgage until after the mortgagor's death, it was held that the foreclosure suit was properly dismissed. Burrow v. Debo, 47 Mich. 242.