Conners v. Holland , 113 Mass. 50 ( 1873 )

Morton, J.

It is conceded that the plaintiff cannot recover if the sale under the provision contained in the mortgage .of Michael Conners was valid. This depends upon the question whether interest was over due under the mortgage at the time the advertisement and sale took place.

The mortgagor covenants that the granted premises “ are’free from all incumbrances except one mortgage for $870,” and the condition of the mortgage is as follows: “ Provided, nevertheless, that if the said grantor or his heirs,-executors, administrators, or assigns, shall pay unto the said grantee, or his executors, administrators, or assigns, the sum of five hundred and thirty dollars, in semi-annual instalments of twenty-five dollars each, said payments to commence when said first mortgage shall have become due, with interest semi-annually at the rate of eight per cent, per annum, and until such payment shall pay all taxes and assessments on the granted premises,” then the deed shall be void.

The plaintiffs contend that no payment of interest was to be made until the prior mortgage became due ; but such is not the fair construction of the contract.

The mortgage note is a contract to pay the principal by instalments commencing at a future day, and to pay interest semiannually. Upon such a contract interest begins to run from the date of the note, and the first payment is due at the expiration of the first half year. The holder of the note may sue for each half year’s interest as it becomes due, although the principal is not due. Hastings v. Wiswall, 8 Mass. 455.

It follows that by the failure on the part of the mortgagor to pay the interest at the expiration of the first half year there was. a breach of the condition of the mortgage, which authorized the mortgagee to sell the premises under the power contained in the mortgage, although no part of the principal had then become due. The ground taken by the plaintiffs, “ that the sale under the mortgage was unwarranted prior to the appointment of an administrator of the mortgagor,” cannot be sustained. The death of the mortgagor does not defeat or suspend the power contained in the mortgage. Varnum v. Meserve, 8 Allen, 158.

Judgment for the defendant.