The defendants purchased a farm from the plaintiffs, agreeing to pay therefor the sum of $10,500. Three thousand dollars was paid down, and a bond and mortgage, bearing date of March 1, 1913, was executed and delivered, for the balance of $7,500. By the terms of this mortgage the defendants were to pay $150 on the 1st day of March, 1914, and a like amount each 1st day of March until 1923, when the whole was to become due and payable. Interest was to be paid annually, though the defendants appear to have labored under a mistaken idea that the interest payments were to be made semiannually, and the interest was kept up under this theory until the payment made on or about the 1st of September, 1914, at which time no interest was due. The defendants defaulted in the payment of the $150 of principal on the 1st of March, 1914, and in February, 1915, this action was brought to foreclose the mortgage on account of such default. The learned trial court has found the facts justifying the foreclosure, and judgment has been entered. The defendants appeal from the judgment.
There is no dispute that the defendants did not make the payment of $150, but they claim that this specific payment was waived, or was involved in the payment of $1,700 made by one Page for certain timber on the farm. The mortgage provided: “No timber or lumber to be cut on said premises except for firewood, fences and for buildings thereon, and except, too, that in case any other timber or lumber is cut then and in that event the net proceeds thereof shall be applied on this mortgage as a payment hereon, even though no payment is then due. ” Timber was sold, both parties taking part in the negotiations for such sale, to the amount of $1,700, and the *31proceeds were paid over to the plaintiffs, as provided in the mortgage, and the defendants contend that this payment operated to take care of the particular $150 due on the first of March following, as well as others which were to follow, and it is claimed that the plaintiffs consented to waive the payment of the sum due on the 1st day of March, 1914.
Obviously, the provisions of the mortgage in reference to the timber merely contemplated that if the trees were cut down and disposed of the mortgagees would release them from the lien of the mortgage upon being paid the net sum realized, in the same sense that they would have released ten acres of the land from the lien of the mortgage if the defendants had sold the same and paid over the proceeds to the plaintiffs. This is a distinct provision for the release of a portion of the property from the lien of the mortgage, and has no relation to the provision for annual payments upon the principal.
I agree with the learned trial court that the evidence does not support the contention that there was any waiver of the conditions of the mortgage in respect to the payment of $150 on the 1st day of March, 1914.
The judgment appealed from should be affirmed.
Judgment reversed on law and facts, with costs, and judgment directed for the defendants, with costs. The court disapproves of the 7th and 9th findings of fact, and finds in lieu thereof that it was expressly agreed between the mortgagors and the mortgagees, in consideration of the sale of the $1,700 of timber from the property and the application of the proceeds upon the mortgage, that the payment falling, due March 1,1914, need not be made ; also that the acceptance of interest in September, 1914, was a waiver of the right to declare the whole amount of the mortgage due, and that at the time of the commencement of the action the defendants were hot in default in making any payment secured by said mortgage.