Grable v. Beatty

'Sullivan, J. This was an action by Beatty against Grable,.in the district court of G'age county, upon the following instrument: “On the first day of May, A. D. eighteen hundred and ninety-four, for value received, we promise to pay to the order oif Horace. P. Green the principal sum of one thousand dollars, lawful money of the United States of •America, with interest thereon at the rate of seven per cent per year, from April 17, 1889, until maturity, payable semi-annually according to the tenor of ten interest notes, one being for thirty-seven and 50-100 dollars, and [643] nine each for thirty-five dollars, bearing even date herewith, both principal and interest notes payable at the Charter National Bank .of Media, Pennsylvania (with exchange on New York). And if default be made in the payment of any -of -said notes so secured, or any part ¡of' them, as the same mature, for the space oif thirty days, or if the maker of this note and interest notes attached hereto shall allow the taxes or any other public rates and assessments on the property, or any part thereof, given as security for the aforesaid notes to become delinquent, or shall do any act whereby the value of said mortgaged property shall be impaired, then upon the happening -of any of said contingencies the whole amount herein secured shall at once be and become due and payable at the election of the holder of the note, his heirs or .assigns, and the mortgagee, his legal representatives or assigns, may proceed at once to collect this note and foreclose the mortgage given to secure said note and sell the mortgaged property to satisfy said debt, interest and costs, and taxes, public rates or assessments that may be due thereon which shall be secured by mortgage and also included in judgment in such foreclosure. These notes are ¡secured by mortgage of even date herewith, duly recorded in Gage county, of the state of Nebraska. This note bears interest at the rate of ten per cent per year, payable half-yearly after maturity. All right of homestead is hereby waived. “Dated at Beatrice, state of Nebraska, -on the seventeenth day of April, 1889. J. S. Grabie. “J. L. Tait “Attest: “A. L. Green.” The plaintiff recovered judgment, and. the defendant, by this proceeding in error, brings the record here for review. Grable sought, both by motion and answer, to have the action 'transmuted into a suit to foreclose the mortgage •given to secure the note above .set out. He now con [644] tends that the two instruments are separate parts of a single, indivisible contract, and that their provisions are so blended and interdependent that an action cannot be maintained upon the note alone. We cannot assent to this proposition. The note unconditionally binds the defendant for the payment, at a fixed time, of a definite sum of money. Subordinate, provisions- authorize the payee, under certain circumstances, to accelerate the maturity of the obligation, and then to collect it. By the express terms of his contract the defendant became personally and absolutely liable for the payment of $1,000, together with the interest accrued thereon. Neither in the note nor in the mortgage is there found any stipulation making the mortgaged premises primarily liable -for the payment of the debt. The plaintiff might have resorted to Ms 'security in the first instance, but he was under no contract obligation to do so. In the absence of special circumstances, there can be no doubt of the right of a creditor, whose -claim is secured by mortgage, to recover a judgment at law without having first exhausted his remedy by foreclosure. (Meehan v. First Nat. Bank, 44 Neb. 213; Hargreaves v. Menken; 45 Neb. 668; Code of Civil Procedure, secs. 848, 850, 851.) The defendant, however, contends that it stands admitted in the record that the mortgagee agreed to -resort primarily to the security for -satisfaction of his claim. This contention i-s based on the fact that the court sustained a demurrer to Grable’s answer, in which, after pleading various provisions of the mortgage, he alleges: “That in consideration of -said special stipulations and agreements so made and -entered into by the -said defendants, the said Horace P. Green' then and there agreed to and with the said defendants -to accept a conveyance of the said real estate, and look to the said real estate for the payment of said note and the interest thereon, and agreed that if default be made in the payment of said note, interest, or taxes, or either of them, or upon a breach in the conditions of said note or mortun-ae, he would fore [645] close tbe mortgage on said real estate under and according to tbe laws of tbe state of Nebraska, and sell tbe same, to pay said debt, all of wbicb tbe plaintiff well knew when be purchased .said noté, as shown by said special stipulations so accepted by him, from .said Green.” By tbe foregoing allegation it was evidently tbe intention of tbe pleader to state a conclusion deduced by him from the facts antecedently averred. Those facts do not sustain bis conclusion. Tbe mortgagee did not agree to look bo tbe mortgaged property for satisfaction of bis claim, and tbe plaintiff, who is indorsee and owner of tbe note, could not lawfully be required to change bis form of action into a suit to foreclose the mortgage. The judgment is right and is Affirmed.