This is an appeal from an order dismissing the bill of complaint as to defendants Wagner.
On May 15, 1926, defendants Wagner executed a promissory note in the sum of $12,500 to The Bank of Detroit, payable on May 15, 1929. The note bore interest at six per cent. per annum, payable on October 1, 1926, and semi-annually thereafter. At the same time the Wagners executed a mortgage on certain real property in which they covenanted to pay the principal and interest as stated above. On September 1, 1926, defendants Wagner gave a warranty deed to defendant Philip Baker, in which the latter assumed and agreed to pay the mortgage. By various assignments the mortgage and note became the property of plaintiff, Guardian Depositors' Corporation. No payments were ever made on either principal or interest by defendants Wagner; all of them were made by defendant Baker in his own behalf. The ledger sheet of the original mortgagee disclosed that the interest due October 1, 1926, was paid October 2d; the interest due on April 1, 1927, was paid April 2d; and the interest due on October 1, 1927, was actually paid October 22d.
During the entire time from the execution of the note and mortgage on May 15, 1926, to October 30, 1937, when this suit was instituted, defendants Wagner were residents of and living in the city of Detroit.
The mortgage in question was on a printed form which contained the following paragraph:
"That should default be made in the payment of any of the sums of money above mentioned, or any instalment of interest, or in the performance of any of the covenants or agreements herein contained, and should such default continue for 30 days, the whole principal sum of this mortgage, together with *Page 216 all arrearage of interest thereon shall, at the option of said mortgagee, its successors or assigns, and without notice, become and be due and payable immediately thereafter, although the period above limited for the payment thereof may not then have expired. The commencement by said mortgagee, its successors or assigns, of proceedings to foreclose this mortgage in any manner authorized by law shall be deemed an exercise of said option."
The mortgage also contained this typewritten clause:
"It is understood and agreed by the parties hereto that should default be made in any of the terms of this mortgage, then the entire amount due, including the entire balance on principal and interest and all expenses shall be in default and the mortgagee is hereby empowered to exercise the power of sale covering the entire amount then unpaid."
Plaintiff sought a decree against each of the defendants for the entire amount due upon the note and mortgage and, if necessary, a foreclosure of the mortgage. Defendants Wagner moved to dismiss plaintiff's bill of complaint for the reasons that more than six years had elapsed since the promissory note became due on May 15, 1929, and more than 10 years had elapsed since plaintiff's cause of action accrued upon the covenants of the mortgage, which defendants Wagner claim were first breached on October 1, 1926. Plaintiff insisted that the statute of limitations, 3 Comp. Laws 1929, § 13976 (Stat. Ann. § 27.605), was inapplicable because the mortgagee did not have the right to declare the full amount of the mortgage due and payable unless the mortgagor's default continued for 30 days, and that none of the defaults continued for more than 22 days. Plaintiff further claimed that the typewritten paragraph was *Page 217 inserted by mistake and, if it has been deliberately inserted, then the typewritten paragraph and the printed paragraph should be reconciled. Plaintiff also claimed the mortgage was ambiguous. The trial court held that there was neither mistake nor ambiguity, that the typewritten clause could not be reconciled with the printed paragraph, that the typewritten clause expressed the intent of the parties, that plaintiff's cause of action accrued more than 10 years prior to October 30, 1937, and granted the Wagners' motion to dismiss.
If the parties intended to give the typewritten insertion any effect, and we must presume that they did, their purpose was to make the entire amount of principal and interest due on default in any of the terms of the mortgage. The printed clause, on the other hand, required continuous default for 30 days before the principal and interest became immediately due thereafter at the option of the mortgagee. These two provisions cannot be reconciled. It is well settled that where parts of an instrument are inconsistent, an inserted written or typewritten portion will prevail over the printed one. This rule is stated in 12 Am. Jur. p. 797, as follows:
"Where part of a contract is written and part is printed, and the written and printed parts are apparently inconsistent or there is reasonable doubt as to the sense and meaning of the whole, the words in writing will control. The reason greater effect is given to the written than to the printed part of an agreement, if they are inconsistent, is that the written words are the immediate language and terms selected by the parties themselves for the expression of their meaning, while the printed form is intended for general use without reference to particular objects and aims." *Page 218
In Mansfield Machine Works v. Common Council of Lowell,62 Mich. 546, the court said:
"The written portion of the contract, if inconsistent with any part of the printed form, must govern and control."
See, also, Russell Co. v. Bondie, 51 Mich. 76.
It is claimed, however, that, if we sustain the typewritten clause, we sanction an oppressive provision in the mortgage which, under penalty of forfeiture, exacts prompt and immediate payment from the mortgagor. We have held similar clauses valid and enforceable. See Brody v. Crbzier, 242 Mich. 660; Rathje v.Siegel, 243 Mich. 376, and Jaarda v. Van Ommen, 265 Mich. 673.
The trial court was correct in finding that there were defaults in the payments of interest due October 1, 1926, and again on April 1, 1927, and finally on October 1, 1927. More than 10 years having elapsed from the default before the commencement of suit, plaintiff's cause of action is barred by the statute of limitations. 3 Comp. Laws 1929, § 13976 (Stat. Ann. § 27.605).
The order dismissing the bill of complaint as to defendants Wagner should be affirmed, with costs to appellees.
SHARPE and CHANDLER, JJ., concurred with BUSHNELL, J. BUTZEL, J., did not sit. *Page 219