Complaint to foreclose a mortgage. Judgment of foreclosure, and appeal.
There was a general denial of the complaint, but without oath, by a part of the defendants, and a part made default.
The condition of the mortgage was—
“ To secure the payment, when they become due, of five promissory notes of this date [the date of the mortgage], made by said Bhmt to said Harding, the first one being for 120 dollars, due June 1, 1855; the second, for 880 dollars, due February 1,1856, with interest from date; the third, for 1,000 dollars, due February 1, Í857; the fourth, for 1,000 dollars, due February 1, 1858; the fifth, for 1,000 dollars, due February 1, 1859; said last three notes without interest till due; and the mortgagor expressly agrees to pay the sum of money above secured, without relief from valuation laws.”
This suit was instituted after a part, but before all, of the notes became due, and it is contended that it was prematurely brought — that the mortgage could not be' foreclosed till all of the notes were due. It was decided in Smith v. Stewart, 6 Blaclrf. 162, that if the condition of the mortgage did not contain an express covenant to pay the money, it would not sustain an action of debt or covenant for the money. And see 2 R. S. p. 239. The express covenant in this mortgage would be sufficient to bring it within that decision; but it can have no bearing, as it is worded, upon the right to foreclose.
In The State Bank v. Tweedy, 8 Blackf. 447, we find it laid down, that, “In this state, if no statute interpose, a mortgage securing a debt payable by installments, may be foreclosed on default of payment of the first installment, and the mortgaged property sold for the payment of that installment. Andrews v. Jones, 3 Blackf. 440. By our Revised Statutes of 1843, p. 461, such is, from that time, made the law by express enactment. From 1831 to 1843, embracing the period in which the mortgage in this case was executed, we had a statute prohibiting the foreclosure *247of mortgages till the last installments of the debts specified in them became due; but it was decided in Youse v. M’Creary, 2 Blackf. 243, that, during the same period, if the mortgagee held notes for the payment of the money secured by the mortgage, he might proceed at law upon them, as they became due, and sell the mortgaged premises on execution; and that the purchaser at such sale would take a title, free from the incumbrance of the mortgage. The law, then, may be stated in general terms to be, in this state, that the holder of the first of several notes secured by a mortgage, may, if he choose, when that note becomes due, enforce the full payment of it out of the mortgaged premises, they being sufficient for that purpose,” &c.
Under the code of 1843, mortgages, the terms of the conditions in which were like the present, were foreclosed before the last installments became due. Greenman v. Pattison, 8 Blackf. 465.—Lacoss v. Keegan, 2 Ind. R. 406.—Cecil v. Dynes, id. 266.—Ind. Dig., pp. 586, 587.
In the code of 1852, the provision of law authorizing the foreclosure of mortgages upon the coming due of a single installment, is reenacted. 2 R. S. p. 176. So that, both by common and statute law, a suit for such foreclosure may be maintained in this state.
But it is contended, in a brief of great research and ability, that this provision of the law may be waived by the mortgagee, and that the terms of the mortgage contract may contain such waiver, or, in other words, may control this principle of law; and, perhaps, this may be so; and it is further insisted that the contract in this case, does assume to control it. This is the question. We cannot see that it does. The condition is in the usual form — the mortgagor executes it “to secure the payment of the notes when they become due” — that is, plainly, as they become due; and when one of them falls due and remains unpaid, the condition, as to that note, is broken, and both the common law and statute say that when one of the notes or • installments so becomes due and remains unpaid, the mortgage may be foreclosed. This statute certainly enters *248into every mortgage contract made under it, at all events, unless the terms of the contract exclude it. We see nothing in the terms of the mortgage contract in question which indicates that the parties intended to take it out of the operation of the statute. It is plain from the whole statute that it is not to be limited in its operation to mortgages that stipulate that the whole debt shall be due on failure to pay a single installment.
N. B. Taylor, for the appellants (1). D. M’Donald and A. G. Porter, for the appellee (2).Per Curiam. — The judgment is affirmed, with 1 per cent, damages and costs.