Butler v. Ladue

By the Court : The bill in this case was filed to foreclose a mortgage, which is claimed by defendant to be one of indemnity, upon which no relief could be asked until the parties should be damnified by paying the debts secured. Complainants, on the other hand, claim that the mortgage was conditioned not only to indemnify after damage, but to pay the debts; and that a right of action accrued at once on non-payment, as decided in Hall v. Nash, 10 Mich. 303. 1 The mortgage, after an ordinary condition to indemnify and save harmless, proceeds: “and if said party of the [180] first part shall promptly pay and discharge all notes or other papers of his upon which said parties of the second part •shall or may become indorsers or acceptors, together with all interest, costs and charges accruing thereon, so as to ■save said parties of the second part harmless by reason of their connection with such paper,” &c. This is a clear and unequivocal condition to pay, and the condition was broken at once upon a failure to meet the paper at maturity. And upon this breach a right of foreclosure arose, without further action on the part of the mortgagees. The power of sale appended to the mortgage is undoubtedly limited to the case of the mortgagees being damnified, by paying the debts which the mortgagor failed to' pay. But the power of sale, although usual, is no necessary part of the mortgage, and need not be co- extensive with its conditions. It cannot do away with any condition actually expressed, and could only be resorted to for explanation where there should be some ambiguity requiring such aid. This mortgage is not ambiguous; and- the remedy in equity is open for every breach of condition, whether the parties have seen fit to provide for it or not by the power of sale, which is a private remedy by contract, and may be narrowed by agreement to any extent desired. Complainants, therefore, had a good cause of action, and the decree in their favor is affirmed, with costs.