Hanson v. Dunton

28 N.W. 221, 35 Minn. 189, 1886 Minn. LEXIS 82

• Court: Supreme Court of Minnesota
• Decided: May 21, 1886
• Status: Published

Opinion

Berry, J.

By the terms of the mortgage involved in this ease the whole amount which it secured was to become due upon the mortgagor’s default in the payment of interest. By foreclosing for the principal, and for at least a part of the overdue interest, before the expiration of the time fixed for the payment of the principal, the mortgagee exercised its election (if any were required) to treat, and in fact did treat, the whole amount of principal and accrued interest as due, and, having assumed to foreclose on this basis, it necessarily foreclosed once for all.

Having thus made that which the mortgagor might have paid in instalments payable as an entirety, the entirety became one and indivisible, and the mortgagee could not split it into two or more parcels, and foreclose first for one and afterwards for others. The first foreclosure exhausted the lien of the mortgage. Dick v. Moon, 26 Minn. 309, (4 N. W. Rep. 39,) appears to cover this case completely. There is no true analogy between it and a case in which, a mortgage debt being payable in instalments, a foreclosure has been had for the first instalment when due, and, redemption from the sale having been effected, a subsequent foreclosure maybe had for the next instalment when it becomes due. Here the whole mortgage debt became due as ■an entirety, and was so treated by the mortgagee at the time of and by its foreclosure.

Judgment affirmed.