By the terms of the note, the principal is not on interest, but the contemporaneous agreement requires the payment of five dollars a month, which amounts to sixty dollars a year or 2 2/5 per cent of the principal. By the note, the principal is payable on demand; but by the agreement, the payment, so far at least as it relates to a foreclosure of the mortgage, is postponed until the decease of the defendant, or until he shall make default in paying the monthly installments or keeping the buildings upon the mortgaged premises reasonably insured for the plaintiff's benefit. Construing the note and mortgage as embracing the contemporaneous agreement (Hill v. Huntress, 43 N.H. 480), the note is payable, with interest monthly *Page 223 at the rate of 2 2/5 per cent per annum, on demand after the decease of the defendant if the interest is paid when due, and if not, on demand after a default in the payment of interest; and the mortgage secures the payment of the note and the performance of the defendant's agreement in respect to insurance. The mortgage could not be foreclosed so long as the defendant made payments and kept up the insurance according to his agreement. The employment of three papers, instead of two, to express the contract, does not impair its validity or change its effect. There having been a default in the making of the monthly payments, the principal is due by the terms of the contract.
The right thus secured to the plaintiff is as reasonable and equitable as the right of the defendant to have the payment of the principal postponed until his decease, if he made the monthly payments in accordance with his agreement. The parties having entered into the contract uninfluenced by any fraud, it governs their rights, and there is no ground on which equity can interfere with the enjoyment of them. The plaintiff is not insisting upon a forfeiture of a right possessed by the defendant, but upon the payment of a debt due her by the terms of the contract. The defendant can redeem the land from the mortgage by paying the note. His obligation to pay the principal having become complete before the action was begun, no prior formal demand of payment was necessary. Watson v. Walker, 23 N.H. 471, 493.
The plaintiff is entitled to conditional judgment upon the mortgage, treating the principal of the note as due.
Case discharged.
WALLACE, J., did not sit: the others concurred. *Page 224