Pendleton v. Rowe

By the Court, Sawyer, J.: The note is in the following words:

“ San Francisco, Cal., November 25th, 1854.

“ $1,200.

“ Six months after date I promise to pay to George Pendleton, or order, twelve hundred dollars for value received, [152]with interest at the rate of three per cent per month, payable monthly in advance; and in case the said interest or any portion thereof should become due and remain unpaid after demand, then the mortgage given by me of even date herewith, which is given to secure the payment of this note, may be foreclosed and the property therein described be sold, and the costs and expenses thereof, with the debt and interest due thereon being first deducted, the balance, if any, shall be paid over to me or to my order.

“ Edward S. Bowe.

“Witness: Thos. C. Hambly.”

By the covenants and conditions of the mortgage on default, the mortgagee “ was empowered to foreclose said mortgage, according to the provisions in said note contained.” There can be no doubt that the principal and interest all became due six months after the date of the note. It is all in express terms, payable six months after date. After naming the date of payment, a clause is added expressly authorizing a foreclosure, even before the maturity of the note, on failure to pay the interest monthly in advance after demand. This, in effect, shortened, instead of prolonged, the time of payment of the whole note on failure to pay the interest regularly. There can be no doubt that, at the expiration of six months from the date of the note, the payee and mortgagee could have maintained an action to recover the amount due and foreclose the mortgage, even though the interest had all been regularly paid. The cause of action, then, accrued in May, 1855, and was long since barred. The other facts averred are insufficient to take the case out of the statute. The demurrer was properly sustained.

Judgment affirmed.