Bridges v. Ballard

Campbell, C. J., delivered the opinion of the court. The suit was not prematurely brought. The indebtedness secured by the deed of trust was six hundred dollars, evidenced by three promissory notes maturing at different times. The power to sell conferred on the trustee was to be exerted if there was failure to pay the amount of said notes on or before the maturity thereof. The true interpretation of this is, that if the several notes were not paid as they became due a sale might be made. It is competent for the parties to a mortgage or deed of trust to stipulate that foreclosure shall not occur until all of several notes secured by it shall be due, and such stipulation will be regarded by the courts; but in the absence of a provision against the right of the creditor to foreclose [241] as each installment becomes due, it will not be held to have been renounced. The expressed object of the deed of trust was to secure “the-prompt payment of the said notes at the maturity thereof.” This-means of each note as it matures. The phrase, “ amount of said notes,” does not negative the right of the payee to resort to the-security given for their payment. There is no exclusion- of the right to enforce the security for each npte as it matures. The Supreme Court of Missouri held that a mortgage which gave the power to sell in the event that “the said notes- should not be well and truly paid ” secured the payment of each, note as it became due, and. said: “ Any other construction would be that securing payment of notes falling due at different periods is securing payment of the last note when it becomes due and all the rest after they become due.” Reddidick v. Gressman, 49 Mo. 389. To the same effect is Hunt v. Harding, 11 Ind. 245. According to the two cases cited, the expression, “ on or before the maturity thereof,” used in this deed of trust is the equivalent of “ on or before the maturity of each of said notes.” Decree reversed, demurrer overruled, and cause remanded for an answer within thirty days after the mandate herein shall be filed in the court below.