Byrne v. Hoag

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HARRISON, J.

—The appellants executed to the respondent their promissory note for two thousand dollars April 27, 1892, payable three years after date, with interest payable semi-annually, and as security for its payment executed at the same time a mortgage upon certain real property, with a provision therein for its foreclosure in case of default in the payment of the note, or of any instalment of interest when due thereon. There was no provision that the note should be deemed to have matured in case of any default in the payment of interest. October 6, 1893, the first instalment of interest not having been paid, the respondent commenced an action for the foreclosure of the mortgage, alleging in her complaint that the entire amount of the sum named in the note, both of principal and for interest, was due. The defendants in their answer denied that any part thereof was due thereon except for the interest then accrued upon the principal sum. Judgment was entered Hovember 27, 1893, for the amount of the interest then due, and directing the sale of the mortgaged premises, or so much thereof as should be necessary to satisfy said amount. Ho provision was made in the judgment in reference to the amounts subsequently to fall due upon the note. Ho sale was made under this provision of the judgment, nor was the amount thereof paid. In April, 1897, the plaintiff served upon the defendants, and presented to the court, her affidavit of these facts, and also that since the entry of the judgment the principal sum named in the note, with interest thereon that had accrued since the entry of the judgment, had become due, and had not been paid, and moved the court for an order and decree directing a sale of the property described in the decree of Hovember 27, 1893, to satisfy the amount which had become due on the note since the rendering of said decree. The court granted her motion, and on October 12, 1897, caused to be entered an order entitled “decree of foreclosure and order of sale,” by which it determined the amount that had become due upon the .promissory note since the entry of the decree of Hovember 27,. 1893, and directed a sale of so much of the mortgaged premises as should be necessary to satisfy the same. The defendants have appealed therefrom.

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