Ellwood v. Wolcott

The opinion, of the court was delivered by ' Horton, C. J.: The facts in this case are these: On May 17,1883, William Ellwood, Azariah Ellwood, John J. Ellwood and John Pricer executed their note for $1,200 to the order of V. B. Latham, due in three years from date, with interest at ten per cent, per annum, payable annually, and with Mary E. Ellwood secured the same by a mortgage on two lots in the city of Hutchinson, in Reno county. On November 26,1883, Y. B. Latham sold and transferred the mortgage to Wolcott without recourse. The mortgage contained this stipulation: “If the taxes or assessments of any nature which are or may be assessed or levied against said premises or any part thereof are not paid when the same are by law due and payable, then the whole of said sums and interest thereon shall by these presents become due and payable, and the said party of the second part shall be entitled to the possession of said premises.” Taxes upon the premises were assessed for the year 1883, to the amount of $25.16. Without notice to the mortgagors, Wolcott paid the taxes on December 22,1883, and thereupon commenced his action to foreclose the mortgage, alleging-in his petition a breach of the condition of the mortgage in that the mortgagor’s had defaulted in the payment of the taxes assessed upon the mortgaged premises. The plaintiffs demurred to the petition, which the court overruled and rendered judgment in favor of the defendant in error. Was any error committed thereby? We think not. The defendant in error did not pay the taxes until after December 20, 1883. The taxes assessed for 1883 were due under the-statute before they were paid. The plaintiffs in error should have paid at least one-half of the taxes on or before December 20, 1883. The statute provides: “If any part of the saict [528] first half of said taxes remains unpaid after the twentieth day of December, the whole amount of tax charged against such person failing to pay the first half of the tax as herein provided shall become due, and shall be collected as provided by law; and all taxes due and unpaid on the twenty-first day of December of each year shall be subject to have added thereto a penalty of five per cent.” (Comp. Laws of 1879, ch. 107, §§ 91, 85.) Under the terms of the mortgage, the mortgagors had defaulted, and it was not necessary for the defendant in error to notify them that the taxes were due, or that he was about to pay the same before paying such taxes. Neither was it necessary for him to notify them that he had paid the taxes. The mortgagors were bound to know when the taxes were due and payable, and if they failed to pay the same according to the conditions of the mortgage the owner and holder of the mortgage upon their default had the right to commence his action to foreclose the mortgage. By the express terms of the contract, the entire amount of the debt was to become due upon the failure of the mortgagors to pay the taxes when they became due and payable. (Stanclift v. Norton, 11 Kas. 218.) The ruling and judgment of the district court will be affirmed. All the Justices concurring.