Johns v. Rice

Ladd, C. J. 1- SS»: lntor6st ’ timo of payment: construction. -The promise was to pay $4,500 five years after date, “with interest from date at the rate of 4 per cent. per annum until paid.” As no different time was fixed for the payment of interest, it would be payable, but for the mortgage, at the same time as the principal; the promise to pay the interest be-rag construed to pay it with the principal at the time the latter becomes due. Saunders v. McCarthy, 90 Mass. (8 Allen) 42; Ramsdell v. Hulett, 50 Kan. 440 (31 Pac. 1092); Koehring v. Muemmimghoff, 61 Mo. 403 (21 Am. Rep. 402). The condition of the mortgage was that the makers caused to be paid “the sum of $4,500 on the 17th day of September, 1915, with interest thereon, payable annually, according to the tenor and effect” of the promissory note. The word “tenor” in a pleading imports that the exact words are set out. McDonnell v. State, 58 Ark. 242 (24 S. W. 105); Edgerton v. State (Tex. Cr. App.), 70 S. W. 90; Thomas v. State, 103 Ind. 419 (2 N. E. 808). But as found in other instruments, especially when coupled with “effect” as “according to the tenor and effect of,” it is construed as meaning purport and effect or intent and meaning. Jones v. Casler, 139 Ind. 382 (38 N. E. 812, 47 Am. St. Rep. 274). Or, as said in Dobbins v. Parker, 46 Iowa, 357, “tenor does not mean the exact language but the purport, substance, general course, or drift. ’ ’ The note and mortgage, having been executed at the same time and as part of the same transaction, are to be construed together. Des Moines Savings Bank v. Arthur, 163 [236] Iowa, 205. In doing so effect should be given the language of each instrument, if possible. The mortgage provides that the interest shall be “payable annually,” and as the note is silent on this subject, save by construction, there is no obstacle for not giving effect to this provision. Dobbins v. Parker, supra, is in point; the court there saying: ‘ ‘ There is no real conflict between the notes providing for 10 per cent, interest per annum from date, and the mortgage providing for interest at the rate of 10 per cent, per annum payable annually. If the notes had expressly provided that the interest should be payable annually, and the mortgage had provided that the interest should be payable semiannually, there would have been a case of real conflict. But in this case the mortgage specifically provides for something respecting which the notes are silent, and the provisions of the mortgage might be incorporated into the notes without creating any inconsistency. The notes would then read, ‘With 10 per cent, interest per annum, from date, payable annually.’ mation of The evidence disclosed that the makers of the note supposed interest would not be payable until the maturity of the note, and that the mortgage corresponded therewith, though this was not suggested to the payee or those acting for her, and there was no evidence tending to show that there was any mistake on her part. Since there was no inconsistency between the note and mortgage, and “payable annually,” was not left in the latter through mutual'mistake, the court erred in decreeing the reformation of the mortgage by eliminating these words and in dismissing plaintiff’s petition. Decree of foreclosure should have been entered as prayed. — Reversed. Evans, Weaver, and Preston, JJ., concur.