Colton v. Salomon

The opinion of the court was delivered by

The objections of the defendants are not applicable to a recovery of the overdue interest, and for that reason alone the demurrer might be overruled, but as the questions argued must be met at some time in the progress of the suit it is due to the parties to resolve them now.

The assumption of the debt, both as recited and as declared in the instrument in suit, was an absolute one. The extension was only provisional. Upon failure of the defendants to pay the semi-annual interest the extension was no longer obligatory on the plaintiff. The importing into the declaration of the thirty-day clause in the bond and the allegation thereunder of election that the principal should be due, were supererogatorjc The plaintiff’s right is independent of that clause, but the defendants might reasonably argue for a construction of the agreement that would give them the -advantage of the thirty days’ grace.

"VVe do not fail to notice that the direct covenant of the defendants to pay principal is so to pay on May 13th, 1902, but that covenant is not inconsistent with the absolute assumption of the debt. It was in effect a covenant to pay in accordance with the extension. That failing, through the default of the defendants, the plaintiff’s right may safely rest on the assumption. We are referred to a dictum in a ease in New York that seems to imply that'in the opinion of the court an extension, conditioned on due payment of interest, would survive a default in such payment. Burt v. Saxton, 1 Hun 551. If such is its effect, we disapprove that dictum.

The other objection of the defendants is also without foundation. It is deduced from the statute that requires proceedings for the collection of a debt secured by bond and mortgage to be first by foreclosure of the mortgage and sale of the mortgaged premises, and, only after that, by suit on the bond for deficiency. Gen. Stat., pp. 2111, 2112. It may be that this *76statute applies'to an assumption of such, a bond, but it is quite clear that it does not apply where the mortgage is on property outside of this state, for it assumes to regulate foreclosures and sales, and this would be impossible extra-territorially. The provision that suit on the bond shall open the sale and give a new right to redeem from the mortgage could not be effectuated outside of the state, and therefore it must be that the restriction, of which that provision is an incident, was not intended to be imposed where the property mortgaged should be so situate.

The demurrer will be overruled.