J. N. Harshaw v. . Wm. F. McKesson ( 1872 )

Diok, J.

The mortgage executed by the defendant, William F. McKesson to Jacob Harshaw, fixes the time of payment of the debts secured, at three, four and five years in equal instal-ments.

This action was commenced before the time of redemption had expired, and one of the questions presented for our de■cision, is, whether this action can be maintained ?

A Court of Equity will never decree a foreclosure until the period limited fof payment of the money be passed, and the estate in consequence thereof forfeited to tlie mortgagee, for it cannot shorten the time given by express covenant and agreement between the parties, as that would be to alter the nature of the contract to the injury of the party affected. 3 Powell on Mort, 965.

If this mortgage had expressly stipulated that the estate should be forfeited on the failure to pay the specified instal-ments of the debts, then on said failure the mortagee might have called for his money, or proceeded immediately to foreclose. 2 Eden, 197. The time of payment being delayed was evidently the inducement which caused the mortgagor to enter into the contract, and the security thus furnished, was satisfactory to the mortgagee. The fact that the mortgagee did not commence his proceedings to foreclose upon the failure of the first payment shows that he understood the agreement, as is insisted upon by the defendants.

If the agreement of the parties was, that the estate should be forfeited upon failure of the first payment, it could easily have been inserted in the contract.

The plaintiffs, if they had seen proper, might have proceeded in an action at law, to recover the instalments as they became due, but they could not proceed to have a foreclosure until the day of redemption was passed, and the decree of his Honor in this respect is erroneous.

That part of the. decree which directs a sale of the land mentioned in the first mortgage to the defendants, Charles E. McKesson and others, cannot be sustained. The first mortgagees have not requested a sale, and the plaintiffs have not offerred to redeem the first mortgage. The testator of the plaintiff, by express agreement, debarred himself of the right to foreclose his mortgage for five years, and during that period the plaintiffs have no right to redeem the first mortgage, for in an action to redeem the prior mortgage, they would have to ask for, and be entitled to, a decree of foreclosure against the mortgagor. Coote on Mort., 432.

The first mortgagees may at any time, and without judicial proceedings, accept payment of their debts from the second mortgagees, even without the concurrence of the mortgagor— and this will redeem the prior mortgage. Ibid, 517.

As this action was commenced before the plaintiffs were entitled to foreclose the mortgage — the proceedings must be dismissed.

Per Cueiak. Judgment reversed.