Barroilhet v. Battelle

Burnett, J., delivered the opinion of the Court—Murray, C. J., concurring.

The first question which arises in this case, is, whether the stipulation amounts to a mortgage, according to the true intent of the parties. It will be observed that the language, though concise, is very explicit. The house is “ declared to be mortgaged as security.” That the parties meant something by these words is clear, and what else could that meaning be, but that which is so clearly expressed ? What language could more cleariy express, in the same number of words, the intention to create a mortgage ? The term, “ mortgaged,” is very definite and certain in itself, but the parties have added “ as security for the payment of the monthly rent herein stipulated,” thus giving an express definition of the sense in which they used the term. It is no objection to this view that so few words were employed. The law does not bind parties to use a greater number of words than are necessary to express their meaning. The form of a deed, as given in Kent’s Commentaries, is full as brief as the mortgage in this instance. 4 Kent, 461.

Conceding that this view is correct, the question then arises, whether plaintiff could enforce his mortgage, at any time when the rent was in arrear, or whether he must wait until the expiration of the full term, the house still remaining in the mean time as security. And here again the parties, by the terms used, seem to have very clearly expressed their intentions. The.house was “ mortgaged as security for the payment of the monthly rent herein stipulated.” The rent was stipulated to be paid monthly in advance, and the parties not only refer to the stipulations, but they say expressly, “ the monthly rent.” If a party executes a mortgage to secure the payment of a certain sum of money due by installments, at different periods, it is apprehended that there could be no doubt about the right of the mortgagee to foreclose, upon the failure to pay the first installment, unless there were qualifying words in the mortgage, showing a different intention. The mortgage is only an incident of the debt secured, and it follows as a legitimate consequence, that when the creditor can sue upon and enforce his debt, he can equally enforce the security— [453]the incident that follows it. And as a suit to forclose a mortgage is an equitable proceeding, the Court can always make a decree to suit the peculiar circumstances of each particular case.

But conceding the opposite construction to be true, for the sake of argument only, then in what condition would the plaintiff be placed ? The lease was a fair, honest contract, made by competent parties, who had the undoubted right to make their own terms. The lessee fails to pay the rent, and the plaintiff seeks his remedy. If he demands the rent, with all the formality necessary to forfeit the lease, then the lessee meets him with his claim for the two-thirds value of the house. The lessee has had the advantage of the market, and as events turn out, he finds he had better give up the house at two-thirds of its appraised value/ and thus end the lease and his liability. And he therefore deliberately refuses to pay the rent, so as to force the lessor into this position and compel him to pay for the house before the end of ten years, and before he has realized any considerable sum from the rents of the property. If, on the contrary, rents go up, he pays the rents as they become due, and thus enjoys all the advantages of the bargain. If, however, the lessor does not wish to forfeit the lease, and proceeds upon the mortgage, the lessee meets him with the objection that he cannot sue until the expiration of the term. And’ if the lessor waits until the expiration of the term, he is then met by the objection that his rents were barred by the Statute of Limitations. The very facts of this case go to show the propriety of such a stipulation as we construe the mortgage clause to be.