Morgenstern v. Klees

30 Ill. 422

• Court: Illinois Supreme Court
• Decided: January 15, 1863
• Status: Published

Opinion

Walker, J.

This was a bill to foreclose a mortgage executed by Peter and Elizabetha Klees, to appellant, to secure $2,500, due eight years after date, with eight per cent, interest per annum, to be paid annually. The bill proceeded for a foreclosure, of unpaid interest on the mortgage debt. A demurrer was interposed to the bill, which was sustained, and the bill dismissed at the costs of complainant. This appeal is prosecuted to reverse that decree.

The only question presented for consideration is, whether a bill can be maintained to foreclose for a default in the payment of interest due by stipulation, before the maturity of the principal. The practice is too well settled, to require discussion, or reference to authority, that where a mortgage is given to secure sums of money, falling due at different periods, the creditor may foreclose by bill, as they severally fall due. It is equally well settled, that an action at law may be maintained to recover interest on a debt, specifically made payable before the maturity of the principal, at any time before the debt matures. The yearly interest on this note, when it falls due, is for every purpose an installment. It, by the terms of the note, is an installment, precisely as if separate notes had been given for and payable at the various times as specified in the note. If such notes had been given, and embraced in the mortgage, no one would have doubted the right to foreclose as they severally fell due.

By the operation of this note, at the expiration of each year after its date, two hundred dollars became due by the accumulation of interest. An action at law then accrued for its recovery. This money is embraced in, and secured by, the mortgage equally with the principal, and no reason is perceived why the mortgage may not be foreclosed, to enforce its payment. It is eminently just, as it only effectuates the obvious intention of the parties, and is prohibited by no principle of law or equity. The mortgage must have been given to secure the interest as well as the principal, and the law will not withhold a remedy until the period elapses for the maturity of the whole debt. Brinckerhoff v. Thallhimer, 2 J. R. Ch. R. 486; 2 Hilliard on Mortg. 108. The accumulated interest, when due, is not an incident, but is pro tanto so much of the debt.

The decree of the court below is reversed, and the cause remanded.

Decree reversed.