Burbridge v. Lemmert
Before: Varclief
Synopsis
Mortgage—Agreement of Mortgagor to Pay Taxes — Construction of Mortgage—Void Option to Foreclose for Non-payment of Interest.—Where at the time of the execution of a note and mortgage, and as part thereof, an express stipulation is signed by the mortgagor agreeing to pay all taxes assessed on the mortgage, which is prepared with distinct care and deliberation, and which a surety is required to sign, leaving no doubt of the intention of the parties, the fact that the body of the mortgage authorizes the mortgagor to protect the mortgaged property and pay the taxes thereon “other than the taxes of this mortgage or the money thereby secured,” is not necessarily inconsistent with the language of the express stipulation, which must be construed together with it, and the express and unequivocal agreement that the mortgagor shall pay all the taxes upon the mortgage, renders the note and mortgage unlawful and null and void as to the payment of any interest specified therein, and such mortgage cannot be foreclosed in advance of the maturity of the note, under a clause making it due and payable upon non-payment of interest at the option of the holder of the note.
Varclief, C. Action to foreclose a mortgage on real property to secure the payment of a promissory note, dated January 29, 1889, for twelve thousand dollars, made by defendant, payable to plaintiff, or order, five years after date, with interest at the rate of ten per cent per annum, payable annually, and if not so paid annually, then the whole principal and interest to become immediately due and payable at the option of the holder of the note.
The defendant failed to pay interest for the first year, and about six months after it became due (September 1,1890) this action to foreclose for both principal and interest was commenced.
The answer of the defendant denied that the principal or any interest thereon had ever become due on said note or mortgage, by reason of facts affirmatively alleged in the answer as follows:—.
“ For a second and separate defense the defendant alleges: That at the city and county of Los Angeles, California, on the twenty-ninth day of January, 1889, at the time of the execution of the note and mortgage set forth in the complaint, the plaintiff demanded of the defendant the execution of the agreement hereinafter set forth as a part of the said note and mortgage, and in .accordance with said demand the defendant with the said [495]W. C. Furrey, at said city, on said twenty-ninth day of January, A. ¡D. 1889, at the time of the execution of said note and mortgage, and as a part thereof made, executed, and delivered to the plaintiff, an agreement in writing and in the words and figures following, to wit:—
“Southern California ¡National Bank, \\ “Los Angeles, Cal., Jan. 29, 1889. j
“It is hereby agreed by P. H. Lemmert, as principal, and W. C. Furrey, surety, that in consideration of Mrs. Sarah B. Burbridge lending P. H. Lemmert twelve thousand ($12,000) dollars at ten per cent interest, we, the undersigned, agree to and bind ourselves and our assigns and heirs to pay all taxes of whatever nature which may be assessed against said mortgage of twelve thousand ($12,000) dollars, and that Mrs. Sarah ¡R. Burbridge or her assigns shall be to no costs or expense on account of taxes on said mortgage.
“P. ¡EL Lemmert, Principal.
“W. C. Furrey, Surety.
“Witness: H. M. Bussell.”
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