Opinion
03-21-1896
POST v. INDUSTRIAL LAND DEVELOPMENT CO. et al.
Edwin B. Goodell, for complainant. James Parker, for receivers.
(Syllabus by the Court.)
Bill by Abram S. Post against the Industrial Land Development Company and others to foreclose a mortgage. Heard on report. Decree for complainant.
Edwin B. Goodell, for complainant.
James Parker, for receivers.
BIRD, V. C. After the hearing in this case, and an order referring it to a master to report upon the manner in which the premises should be sold, whether in whole or in parcels, and, if in parcels, in what parcels, the defendant receivers asked leave to file an amended answer, in and by which they might show that the bill was prematurely filed. They were permitted to amend their answer, alleging that the bond secured by the mortgage was made payable on the 3d day of September, 1896, conditioned for the payment of the interest thereon semiannually, on the 3d days of March and of September, and in case the said interestshould remain due and unpaid for the period of 30 days after the same should become due, that then the whole amount of principal and interest should be due and payable, at the option of the obligee, and that on the 3d day of March, 1894, the semiannual interest became due, and remained unpaid for 30 days, but that afterwards the obligee accepted the payment of the amount of interest then due, and that, on the 3d day of September, 1894, the semiannual interest became due and was not paid, but that afterwards the sum of $700 was paid, and that the acceptance of the payment of these several sums was a waiver of the forfeiture of the condition provided for in the bond. The proof shows that the payment of the sum of $700 was not on account of interest, but was the consideration which had been agreed to be paid and accepted for the release of the mortgage from a portion of the mortgaged premises. I can discover no reason for concluding that the acceptance of interest by the obligee of a bond, after forfeiture of the nature indicated above, is a waiver of all the subsequent conditions of a like nature expressed in the bond. It does seem to me that there is no equity whatever in saying that, because a mortgagee accepts the payment of interest after it has become due, therefore he forfeits the right to claim the benefit of all other similar subsequent conditions in the bond. Nor do I believe that any case can be found in which the waiver of one condition by a party has prevented his claiming the benefit of the forfeiture of subsequent conditions. Dumpor's Case, 4 Coke, 119b, 1 Smith, Lead. Cas. Eq. (9th Ed.) 119, is relied upon by defendants in support of their contention that, because the forfeiture of March 3, 1894, was waived by the acceptance of the interest which then became due, no subsequent forfeiture or nonpayment of interest in accordance with the conditions of the bond can be taken advantage of by the mortgagee. I can see but little analogy, if any, between that case and the one in hand. The condition in that case was that the lessee would not alien without license. He did so alien, and the lessor afterwards gave license for a subsequent assignment. It was held that that was a waiver of the first forfeiture, and that, one forfeiture being waived, there could be no subsequent forfeitures. But Dumpor's Case has always been disapproved, as was said by Lord Eldon; in 1807, in Brummell v. Macpherson, 14 Ves. 173, who said: "Though Dumpor's Case always struck me as extraordinary, it is the law of the land,"—and by Sir James Mansfield, in 1812, in Doe v. Bliss, 4 Taunt. 735. The conviction that the decision in Dumpor's Case was extraordinary grew into such force or prominence as to produce expressions decidedly modifying that decision in the American courts. This will appear if the discussion upon the subject as presented by the learned American editor to 1 Smith, Lead. Cas. pp. 133, 134, be carefully perused. On page 137 the learned annotator says: "The ground taken by Lord Eldon and the common-law courts in regard to Dumpor's Case is surprisiug, considering their denial of its correctness, and that it was only recognized to be distinguished and departed from." And, if it "had been law for so many centuries, it is singular that it has never been mentioned in the reports from Lord Coke's time until Lord Eldon's; and to have even then reversed it it would have unsettled no titles, for it did not touch title at all, but only a chattel interest in lands." See, also, the very interesting and instructive comments upon Dumpor's Case, in 7 Am. Law Rev. 616, 632; likewise Doe v. Bliss, 4 Taunt. 735, in which case there was clearly a modification of the harsh rule laid down in Dumpor's Case.
There is no principle in the law better settled than that parties may make time the essence of a contract, and may annex to the performance of the conditions at the time stipulated a forfeiture of all rights. It is equally well settled that parties may waive any rights, by express stipulation, or by their conduct, secured to them under such contracts. But, as above intimated, nothing could be more foreign to these just and equitable rules than to hold that, because a stipulation as to time in one instance had been waived, therefore stipulations with respect to performance of part of a contract, as to the time of performance which had not yet arrived, was also waived. The stipulations in this case are that interest will be paid at separate and distinct times. The one payment is wholly independent of the other, as much so as though there were separate and distinct bonds given for each payment, and secured by the same mortgage. In other words, the contract is not an entirety. The apportionment of the payments of interest has been made by the parties themselves, and as distinctly so as language will admit. In such case, to hold, because a creditor had been merciful or chose to be forgiving in one case, that he thereby forfeited all rights which he had carefully provided for his protection in the future, would be a standing reproach to the law. The only authorities in this state which throw any light upon this subject are: De Groot v. McCotter, 19 N. J. Eq. 531; Association v. Conover, 14 N. J. Eq. 219; Ackeus v. Winston, 22 N. J. Eq. 444; Voorhis v. Murphy, 26 N. J. Eq. 434; Wilson v. Bird, 28 N. J. Eq. 352. The complainant, coming into court, as he does, asking for the foreclosure of a mortgage because of the nonpayment of interest within the time specified in the bond which the mortgage is given to secure, will be entitled to a decree in his favor, where the default in the nonpayment of interest is in no sense chargeable to him, notwithstandingthere may have been a previous default in the payment of interest, which default was waived by the subsequent acceptance of the interest. The decree heretofore made in this cause having been opened for the purpose of permitting an amendment of the answer and additional proof in support thereof, a new decree will be advised. The complainant is entitled to the amount due upon his mortgage, with costs. The report of the master, heretofore made, will be approved and confirmed in such decree, according to which the premises will be sold.