Winchell v. Coney.

and the condition of the mortgage deed, alleges a mutual mistake, by which the parties failed to state in the condition of the mortgage that the interest was payable annually, and prays for a reformation of the mortgage, for a foreclosure, and for possession.

One of the defendants is a non-resident. He attempted to remove the case to the Circuit Court of the United States. From that attempt arises a question as to the jurisdiction of the Superior Court.

The defendant Coney denies that the deed can be reformed as against him. There are also some questions made as to the admission of evidence, the propriety of the amendments, &c. But passing by all other questions for the present, we will first consider whether the plaintiff is entitled to a foreclosure of the mortgage as it stands. If he is, many of the questions discussed are of little importance.

As no part of the principal secured by the mortgage is now due, a foreclosure can only be for interest due and unpaid. The condition of the mortgage does not, of itself, show that the interest is payable before the maturity of the notes; but it purports to secure the notes "according to their tenor." The condition is "Now, therefore, if said notes shall be paid according to their tenor, then this deed shall be void and of no effect; otherwise it shall remain in full force."

We interpret that That is the obvious.

The notes are all alike except in the amount. Omitting that, they all read-" Five years after date for value received, I promise to pay Alvord E. Winchell or order, dollars, with interest annually at six per cent." as a promise to pay interest annually. meaning of the words and is doubtless what the parties intended. So that the real question is, whether the condition sufficiently describes the notes to secure the payment of annual interest as against Coney, who has acquired an interest in the equity of redemption from the mortgagor.

A large number of cases have been decided by this court respecting the certainty required in the description of debts secured by mortgage. It has been held that the nature of

Winchell v. Coney.

the debts must be truly stated-whether by note, bond or open account; that the amount of the debt must be stated, not with exactness, but as nearly as may be, fairly and without fraud; and the character of the indebtedness, whether contingent or absolute. In all these respects this description meets the requirements fully. It goes further, and gives the terms of the notes in part-the date, when payable, and the rate of interest. But it fails to tell us when the interest is payable. Is that failure simply an omission, or does it amount to a false description? We think it is an omission merely. If a note is given on time with interest, and the time for the payment of the interest is not specified, it is payable when the principal is. The same rule of construction however ought not to be applied to the condition of the mortgage. The object of each instrument differs widely from that of the other. The object of the note is to embody the contract between the parties. Of course it must be complete in itself and express the whole contract. The intent of the parties must be gathered from the language used. The object of the other is to identify the note or debt secured by the mortgage and give reasonable notice of the extent of the incumbrance. All the terms of the note are not essential to that object; hence all need not be stated. The particularity required in making a contract is not required in describing it. Hence it may be safely assumed that some particulars may be omitted in the description. Therefore the failure of the condition to tell us when the interest is payable does not necessarily afford ground for the inference that it is payable when the principal is, especially in notes for a large amount and with a long time to run. It is a matter of common observation that a large portion of the indebtedness of the world pays interest annually or oftener-as national, state, municipal, and corporation bonds. So also with long time loans by savings banks and insurance companies. Loans by individuals are hardly exceptions to the rule. We apprehend that it is an unusual occurrence to find a loan for a large amount, to run for more than one year, unless it is stipulated that interest shall

Winchell v. Coney.

be paid annually at least. Therefore there can be no presumption that payment of interest was to be postponed for five years.

The

Moreover, the condition required the mortgagor to pay the notes according to their tenor. Obviously "their tenor" was not wholly expressed. There was one omission, and that omission was the subject of conversation between Coney and the mortgagor before he took his deed. He sought information, but not from the right source. mortgage pointed him directly to the notes. He could there obtain definite, certain and precise information. Instead of inquiring in that direction he chose to rely upon the uncertain, and, as it proved, the unreliable recollection of the mortgagor. That was his own folly. He was not deceived or misled by the record.

We have no case in this state directly in point. In the cases in which the general question is discussed we find no principle which would make this description fatally defective. On the other hand certainty of description in every particular is dispensed with, provided the record gives reasonable notice of the nature and extent of the incumbrance. Stoughton v. Pasco, 5 Conn., 442; Merrills v. Swift, 18 Conn., 257.

But there are cases in other jurisdictions which more closely resemble this. In Richards v. Holmes, 18 Howard, 143, a case very much like this, Mr. Justice CURTIS says:"It was argued that the trust deed does not describe the note as bearing annual interest, and consequently that the subsequent incumbrancer has a right to insist that, as against him, there was no power to sell for non-payment of such interest. It is true the deed does not purport to describe the interest which is to become due on the note; but it clearly shows that it bore interest at some rate, and payable at some time or times, and this was sufficient to put a subsequent incumbrancer on inquiry as to what the rate of interest and the time or times of payment were. The deed in effect declares, and its record gives notice to subsequent purchasers, that its purpose is to secure the payment of such

Winchell v. Coney.

interest as has been reserved by the note; the amount, and date, and time of payment of which are mentioned. We do not think the mere omission to describe in the deed what that interest was to be, is a defect of which advantage can be taken by the complainants."

In Pierce v. Parker, 4 Met., 80, a note was described in a deed of release as payable May 21st, 1834, when in fact it was payable April 21st. It was held that parol evidence was admissible to identify the note. The court says:“And it is a well-settled principle of law that when an instrument, which is offered to prove the subject matter described, differs in one or more particulars from the thing described, evidence is admissible to show their agreement or identity, notwithstanding such misdescription."

In Worthington v. Hylyer, 4 Mass., 196, PARSONS, C. J., says:-"But if the description be sufficient to ascertain the estate intended to be conveyed, although the estate will not agree to some of the particulars in the description, yet it shall pass by the conveyance, that the intent of the parties may be effected."

In Bourne v. Littlefield, 29 Maine, 302, the condition of a mortgage deed was, that if the mortgagor or his assigns. should pay five hundred dollars at a future specified time, then the deed, as also a note bearing even date with it, given by the mortgagor to the mortgagee to pay that sum at the time stated, should both be void. In a bill to redeem it was held that parol evidence was admissible to show that a note of five hundred dollars, payable on demand with interest, was the one secured by the mortgage. Surely if a misdescription may be corrected by parol evidence, a defective description, which defect the note when produced will supply, cannot be a serious objection, and cannot impair the security. See also Johns v. Church, 12 Pick., 557; Hall v. Tufts, 18 id., 445; Jackson v. Bowen, 7 Cowen, 13.

In Webb v. Stone, 24 N. Hamp., 282, the marginal note is as follows:-"It is not necessary that all the particulars of the note secured should be set forth in the condition of the mortgage. It is enough if it appears with reasonable cer

Winchell v. Coney.

tainty to be the note intended." In Cleavenger v. Beath, 53 Ind., 172, the note did not correspond with the description of the note in the mortgage. It was held that the note controlled and cured the defective description in the mortgage. These cases illustrate the distinction we would emphasizethat that part of a contract describing the subject matter to which it relates need not be certain in itself, and does not require that degree of certainty that is required in defining the thing to be done by each of the contracting parties. One object of the condition of a mortgage is to point out the debt intended to be secured thereby. It of itself imposes no obligation upon either of the parties. It is descriptive in its character, and is like the descriptive part of a deed, or other instrument of conveyance, describing the property conveyed. It need only point out the thing conveyed with reasonable certainty. It is not required that the description shall be certain and precise in every particular.

That these notes were sufficiently described for all the purposes of identity can admit of no question. That the description gave Coney all the information he required, or the means of obtaining that information, is equally certain.

We may properly take another view of this question. The description in the mortgage, "bearing interest at six per cent per annum," is at least ambiguous. It clearly expresses the rate of interest, and would have done so if it had simply said "interest at six per cent." That would have been the way in which most people would have expressed it if that had been all that was intended. When therefore the note is described as "bearing interest at six per cent per annum," it is reasonable to suppose that something more was intended. And what else could it be but to indicate the time or times for the payment of interest? Finding that expression there, Coney had no right to assume that it was without meaning, and that no interest was payable until the end of five years. He knew that the notes were on interest and that it was payable at some time. As the description left that matter uncertain he was bound to inquire. Where to look for information could not be a matter of