Marion Bond Co. v. Blakely , 30 Ind. App. 374 ( 1902 )

Roby, J.

The sole question for decision is whether or not a lot owner in the city of Indianapolis, whose land has been assessed for street improvements under the provision of the Barrett law, she having signed a waiver and ex'ereisedher option to pay by instalments (§§3847-3850 Burns 1901), but failed to pay, when due, one instalment, payable on the first Monday in November, paying the amount of the instalment in the January following, before any action had been begun, may, because of such payments so made, and accepted' by the city treasurer, defend against an action to foreclose the lien for the entire amount of such assessment.

The statute, while it gives the right, to pay by instalments, contains the following further provision: “Failure to pay any instalment of principal or interest when the same is due shall bring all instalments of principal yet unpaid forthwith due and payable.” §3853 Burns 1901; Indiana Bond Co. v. Bruce, 13 Ind. App. 550.

In Moore v. Sargent, 112 Ind. 484, the mortgage contained a stipulation to the effect that if the mortgagor failed to pay either of a series of notes at maturity, the undue debt should at once become due and payable. In a complaint filed May 11, 1885, to foreclose the mortgage, it was alleged that the first note falling due June 1, 1884, had been paid, but that payment had not been made until June 4, 1884, three days after maturity, and that in consequence of such failure to pay at maturity, the second note had become due under the stipulation of the contract. This insistence was sustained by the court, and the decision therein seems to be decisive of the case at bar.

Appellee has filed no brief. No ground upon which the case cited can be distinguished suggests itself. .

Judgment reversed, and cause remanded, with instructions to overrule the demurrer to the answer, and for further proceedings not inconsistent herewith.