Schooley v. Romain

Bartol, C. J., delivered the opinion of the Court. Upon the question of the construction of the mortgage, and the bond or obligation of Richniond and Peers, to enforce the payment of which this bill was filed, wo entirely agree with the Circuit Court, and upon the reasoning contained in the opinion of that Court, sent up with the record, and the authorities therein cited, we are willing to rest our decision of that question. The object of the suit is to enforce the payment of the mortgage debt and in [584] terest, according to the terms of the contract; it is in no sense a proceeding to enforce a penalty or forfeiture. (Decided 22d December, 1869.) ¥e agree also with the Circuit Court in the opinion that the appellants, as assignees of the' equity of redemption, took the land subject to the mortgage, and the covenants therein, which may be enforced against the land in the same manner and to the same extent as if the assignment had not been made. The only remaining question is, was there a default in the payment of the interest ? It became due on the 12th day of July, 1867. On the part of the appellants it has been contended that the contract was to be performed where it was made, in Somerset county, Maryland;" that the appellee resided in New York, and had no agent in Somerset county authorized to receive the money, and that they were not bound to pay or tender the money in New York, where alone the appellee was to be found. Assuming for the sake of the argument that this position is correct, the appellants were bound to show that they .were ready to pay the interest when it fell due. It is averred in their answers that they were so ready; but this averment is entirely unsupported by the proof; on the contrary, the evidence shows that they were not ready with the money to pay the interest, at any place, when it became due; their default is without sufficient legal excuse, and the right of the appellee thereupon to demand the payment of the principal, according to the terms of the covenant, cannot be questioned. The decree of the Circuit Court must be affirmed with costs to the appellee. Decree affirmed.