The printed matter in the mortgage as quoted in prevailing opinion penalizes the mortgagors should they sell any of the mortgaged property. It negatives consent by the mortgagee to mortgagors to sell such property or any of it. If they do such a thing, the due date is hastened and immediate possession of the property may be taken by the mortgagee.
The typewritten clause is not in conflict with such printed matter. It does not authorize or empower the mortgagors to sell any of the property. All it does is to state, in effect, that should any sales of cattle be made "from the above-named brand" the proceeds shall be applied on the note set out in the mortgage and not used in any other way except by written consent of the mortgagee. This provisional clause does, of course, contemplate sales during the life of mortgage, but since it fails to say by whom such sales should be made, it ought to be construed so as to uphold the mortgage and as requiring the consent of both the mortgagors and the mortgagee. *Page 597
The prevailing opinion omits to state that the mortgage covered several brands of stock cattle, also horses, ranging at large, and the increase of both. We think it is common knowledge that such stock is bought and sold and mortgaged by their brands; that ranges are limited in capacity; and that, to prevent overstocking, sales are necessary; also, that taxes must be paid and maintenance expenses cared for. These are possibly some of the considerations that influenced the insertion of the typewritten clause.
The power to make the sale is not expressly nor impliedly given willy-nilly to the mortgagors. It is to be exercised by both if they agree the necessities exist. This was obviously the reason the typewritten clause was inserted, and if it be given that construction none of the mortgage will be stricken. The other construction strikes from the mortgage all prohibitions against sales by mortgagors. This violates one of the most cardinal rules of construction requiring that effect shall be given if possible to every word and phrase of a contract.
As was said in Eager v. Mathewson, 27 Nev. 220,74 P. 404:
"It carries the rule of superiority of written over printed matter too far; that is, to the annihilation of the printed matter, when all the parts, the written and the printed, can be reconciled with each other. We do not deny that, when the written and the printed parts of contracts are antagonistic and cannot be reconciled, the written should generally control; but when there is only apparent antagonism, and reconciliation is reasonably easy, we think the rule of reconciliation should govern."
In another case, Eastern B. S. Co. v. Curtis Bldg. Co.,89 Conn. 571, 94 A. 921, it is said:
"It is the duty of courts to give effect, if possible, to all of the terms of an agreement. The construction has to be made upon the consideration of the *Page 598 whole of the instrument, and not upon one or more clauses contained therein. This rule applies as well to instruments partly printed and partly written, as to those wholly printed or wholly written. Where two clauses which are apparently inconsistent may be reconciled by any reasonable construction, that construction must be given, because it cannot be assumed that the parties intended to insert inconsistent and repugnant provisions."
See, also, 13 C.J. 536, § 498.
The typed and printed clauses of the mortgage as quoted in the prevailing opinion are not inconsistent. Both may be carried out. Sales of cattle may be made during the life of the mortgage, not by the mortgagors, for that is forbidden, but by the mutual consent of the mortgagors and mortgagee. There is no conflict between these clauses unless it be one by implication, and conflicts by implication are not favorites of the law.
It seems to me that it is possible to give effect to all the terms of the mortgage, and that being true our duty is plain.