JOHN BRICKELL v. DAVID F. BATCHELDER et al., 62 Cal. 623

Thoenton, J.: This is an appeal prosecuted by defendants from a judgment of foreclosure in an action brought on several notes and mortgages executed to secure their payment. The notes are four and the mortgages three in number, and are all set forth in hcec verba in the complaint. It is contended on behalf of appellants that the action was prematurely brought; that when it was instituted nothing was due, at least on the note and mortgage of first of June, 1874. In the discussion of this contention, our attention is called to the following matters which are disclosed by the record.

The note first in order of time is in these words: “ San Fbancisco, June 1, 1874. “$36,000. Five years after date, without grace, for value received, we jointly and severally promise to pay to John Brickell, or his order, the sum of thirty-six thousand dollars in gold coin of the United States, of the standard fineness now established by law, with interest thereon, payable monthly at the rate of ten per cent, per annum in like coin until paid. Any interest remaining due and unpaid shall be added monthly to the principal, and bear interest at the same rate.

This note is secured by mortgage of even date herewith. “David F.

Batchelder, “Mabia Baker Batchelder.” And to the following stipulation, among others which appear in the mortgage above referred to: “ But in case default shall be made in the payment of the said principal sum or the interest thereon, or any part thereof, according to the terms of said promissory note, or in the performance of any of the covenants hereinafter expressed, then said party of the second part, his heirs, executors, administrators, or assigns, are hereby empowered to proceed to sell the premises above described, with all the appurtenances, in the manner prescribed by law. “And out of the money proceeding from such sale, the party of the second part shall retain the above amount of thirty-six thousand dollars, with interest as aforesaid, together with the costs and charges of such sale, and two per cent, upon the said principal and interest for lawyers’ fees, which shall become a debt from said party of the first part upon filing the complaint in foreclosure, and the amount of all such other charges as are herein mentioned; and the overplus, if any there be, shall be paid by the party making such sale-on demand to the party of the first .part, heirs and assigns.” In February, 1877, a note was executed by defendants to plaintiff, of which the following is a copy: “ San Francisco, February 20,1877. “$2,000.

On the first day of June, one thousand eight hundred and seventy-nine (1879), without grace, for value received, we jointly and severally promise to pay John Brickell, or order, two thousand dollars in gold coin of the United States, with interest thereon until paid, at the rate of one and a quarter per cent, per month, payable monthly in gold coin. Any interest which remains due and unpaid shall be added monthly to the principal, form part thereof, and bear interest at the same rate. “David F.

Batchelder, “Maria Baker Batchelder.” A mortgage was executed by defendants to the payee of this note to secure payment, bearing the same date with the note, containing the following stipulation, inter alia, to which we are directed, and on which reliance is placed: “It is further agreed and understood that all arrearages of monthly interest now existing, or hereafter to accrue, upon that certain note and mortgage made by said David F. Batch-elder and Maria B.

Batchelder to said John Brickell, dated June 1, 1874 (mortgage recorded in Liber 407 of Mortgages, at page 180, City and County of San Francisco), shall bear interest from the date respectively at which they have accrued, or shall accrue, at one per cent, per month, the same to be added monthly to the principal thereof.” In regard to the note and mortgage of June 1, 1874, we are of opinion that, taking the terms of the note and the stipulation above quoted from the mortgage, the plaintiff had the right, on default in the monthly payment of the interest, to commence an action to foreclose.

The interest by the terms of the note was payable monthly, and there was a default in its payment, so alleged and not denied. It would be difficult to detect any difference between a stipulation empowering a mortgagee to proceed to foreclosure on such default, and one giving authority on like default “to proceed to sell ” “ in the manner prescribed by law.” The law prescribes but one mode of sale in the case of mortgaged property, and that is at public outcry, by virtue of an execution issued on a judgment of foreclosure. (C. C.

P., §§ 684, 726, 744.) The power given in the mortgage by the clause just above quoted is to proceed to sell in the manner prescribed by law—which, in our judgment, is in substance the same as a power to proceed to sell by means of an action to foreclose. The power to sell in the manner prescribed by law being given, all means given by law to render such power effectual are also conferred; that is, all means necessary to effectuate a sale in the mode established by law are given.

The power to use the lawful means necessary and proper to carry out the express power is conferred and given by an implication as strong and clear as if it was expressed in so many words. (C. C., § 1656.) This is a familiar and well-established rule in the construction of powers. (See Story on Agency, sees. 55, 56, 58, 59, 60, 73; Wharton on Agency, sec. 187.) Let it be observed here that the choice of means is not left at large. It is limited to that which the law furnishes, and such means the plaintiff is allowed by the language of the contract to adopt. But it is urged that the proper

interpretation of the language of the note shows that such remedy was not to be allowed to plaintiff; that his only right, if the interest was not paid every month, was to add it to the principal and to have interest on it at the rate which the principal bore. To admit the soundness of this position would be to lay out of view the terms of the note, which binds the makers to pay the interest monthly. It would be to discard and reject the rule which requires one in looking for the true meaning of an instrument to accord to every word its just and proper meaning. (C. C., §§ 1639-1641; Broom’s Leg.

Maxims, 555—Ex antecedentibus, etc.) Some stress is laid on the words “ according to the terms of said promissory note,” and attention is invoked to the use of the plural “ terms,” and it is said that “ terms” refer as well to the clause in the note relating to the interest remaining due and unpaid, that “ it shall be added monthly to the principal,” etc., as to the clause relating to the payment of interest monthly. But it should be observed that the clause in the mortgage refers to a default in the payment of the interest or any part thereof, not to a default in adding it when unpaid to the principal.

Indeed, such a default must refer to something to be done by the mortgagors. It could scarcely refer to something with which the mortgagors had nothing to do. The right to dispose of the interest due and unpaid in the mode prescribed in the note was given to the plaintiff mortgagee, not to the mortgagors. A failure to so dispose might arise from the concession of the plaintiff, and not from any default of the mortgagors, except by a default in paying the interest monthly. The language of the note and mortgage gave to the mortgagee the right on default to proceed to foreclose.

He might delay it or waive it, but a delay in exercising this right could not be construed as depriving him of it. The clause in the mortgage above quoted is entirely unlike that in Bank of San Luis Obispo v. Johnson, 53 Cal. 99. This dissimilarity will be apparent on comparing the clauses in the respective mortgages. Hence, the decision in that case can not rule the case under consideration.

But it is said that the clause above set forth in the mortgage of the twentieth of February, 1877, entirely alters the agreement made by the note and mortgage of June 1,1874, and that the effect of such clause is to postpone the payment of the note of June 1, 1874, with all unpaid interest on it, until the maturity of the note, five years after its date. If the language is any indication of intent—and we must hold it to be indicative of the intent of or thought in the minds of the parties—we can not perceive how any such conclusion can he reached.

If we collate and compare the note and stipulations in the respective mortgages, it must clearly appear that the stipulation of 1877 merely refers to the rate of interest which the arrearages of interest referred to in it are to bear—increases the rate from ten per cent, per annum to twelve per cent, per annum, and nothing more.

The interest on the note at the rate fixed on is still to be paid monthly, and if it was not paid monthly, the party on whom the obligation rested to pay was still in default, and the stipulation in the mortgage of June 1,1874, applied to it, and authorized the plaintiff to proceed to foreclose by suit. The agreement that the interest at the increased rate should be added to the principal remains unchanged, except the modification introduced by the clause in the mortgage of 1877.

In fine, the stipulation in the mortgage of 1877 only affects the note of June 1, 1874, and only affects that part referring to the interest not paid when it fell due monthly. It was only intended to modify the term of the note in relation to interest remaining due and unpaid, which was to be added to the principal.

The effect was to modify the note, and that only in the particular above referred to, and to make it read as it had originally down to and including the words “payable monthly at the rate of ten per cent, per annum in like coin until paid,” and as to the remainder of the note, to read, “ all arrearages of monthly interest now existing, or hereafter to accrue on this note, shall bear interest from the date respectively at which they have accrued, or shall accrue, at one per cent, per month, the same to be added monthly to the principal thereof.

This note is secured by mortgage of even date herewith.” We must construe these clauses and the first note together. This is the rule which ordinary foresight would indicate in order that the intent of the parties might be detected. The rule on this subject is well established by decided cases. They are numerous. We will refer to some of them : Doe v. Whitehead, 2 Burr. 704; Davies v. Bush, 1 McCle. & Yo. 58; Crop v. Norton, 2 Atk. 74; Osborn v. Phelps, 19 Conn, 63, 89; Isham v. Morgan, 9 id. 374; Thompson v. McClenachan, 17 Serg. & R. 110 ; Jackson v. Dunsbagh, 1 Johns. Cas. 92; King v.

King, 7 Mass. 496; Chickering v. Lovejoy, 13 id. 51; Perry v. Holden, 22 Pick. 269 ; Stow v. Tifft, 15 Johns. 458; S. C., 8 Am. Dec. 266; 2 Smith’s L. C. 517. This rule is adopted as part of our statute law by the provisions of the Civil Code,

Section 1642: “ Several contracts relating to the same matters, between the same parties, and made as parts of substantially the one transaction, are to be taken together,” and when this is done the other rules in relation to

interpretation must be applied, observing that “ however broad may be the terms of a contract, it extends only to those things concerning which it appears that the parties intended to contract.” (C. C., § 1648.) The clause in the first mortgage, giving the right to foreclosure, remained and was applicable to the modified terms of the note, and the clause in the mortgage of 1877 was a recognition by all the parties of the note and mortgage of June 1, 1874, as subsisting and valid from 1877, with the modification from the last date. We can not see that construction can make this matter any plainer.

Further discussion would be “ wasteful and ridiculous excess.” Mo extent of argument could make it any plainer than the words employed make it.

Again, it is covenanted by the parties to the mortgage of June 1, 1874, “ that the party of the first part [the mortgagors] shall pay all taxes upon the above-described premises,” etc., and if the party of the first part, “ in the performance of any of the covenants hereinafter expressed” (of which the covenant in relation to the payment of taxes, etc., is one), should make default, then the party of the second part (mortgagee) is empowered to sell the mortgaged premises. (See this stipulation fully set forth above.) There was default in payment of taxes for the fiscal year 1877-8, amounting to $580.45.

Such default gave the plaintiff the right to proceed to foreclose, if there was no other. It makes no difference that the mortgagee had the right to pay the taxes and charge them to the mortgagors, the same to become part of the mortgage lien. The right to foreclose was not waived or lost, or the default condoned by the mortgagee plaintiff on his paying the taxes and charging the mortgagors as above, nor by the stipulation which appears above in the mortgage of 1877. If the case of Williams v. Townsend, 31 N.

Y. 411, is in conflict with what is stated above, we cannot accept it as law here, whatever it may be in Hew York. In that case an action was brought to enjoin the sale of mortgaged premises situated in the city of Buffalo, under a statutory foreclosure. The plaintiff, on the eighth of May, 1853, executed to assignor of defendant a bond and mortgage to secure the payment of $2,640, in ten years from the date thereof, with annual interest.

The mortgage contained a condition as follows: “ And shall also pay all assessments, taxes, and charges on said premises to be charged on the same, and in case of default in paying the same,” the mortgagee and her representatives might discharge such assessments, taxes, and charges, and collect the same, with interest, from the time of such payment under the mortgage, in the manner specified in the condition of the bond.

The condition in the bond relating to the question in this case was in these words: “And shall also pay all assessments, taxes, and charges on the premises described in the mortgage bearing even date herewith and collateral hereto, and in case of any default in paying the same, the said” (obligees) “ may discharge said assessments, taxes, and charges, and collect the same, with interest from the time of payment, as part of this bond and the said mortgage.” The mortgage contained a power of sale, providing that if default should be made in the payment of all or any part of the said principal sum of $2,640, or the assessments, taxes, and charges, as aforesaid, or of the interest thereof, at the time or times when the same ought to be paid, in such case the mortgagees were empowered to sell the same at public vendue, etc., and out of the moneys arising from such sale to keep and retain in their hands the said sum of $2,640, together with such assessments, taxes, and charges, as shall have been paid by them, together with all costs, charges, and expenses on account of such sale or sales.

In 1856, taxes amounting to $33.66 were assessed by the city of Buffalo on the mortgaged premises, for which they were sold at auction by the comptroller of the city on the twenty-seventh of May, 1857, for taxes, interest, and expenses, then amounting to $36.75. The premises were bid off by one Viele as agent of defendant, and certificates in pursuance of the charter were issued to Viele, who took them in his own name for convenience of transfer. On the first of August, 1857, the defendant commenced a foreclosure under the statute by advertisement in one of the Buffalo newspapers.

There was nothing then due of the principal or interest secured by the mortgage. Before the day of sale mentioned in the advertisement, plaintiff paid to the proper officer the amount legally necessary to redeem from the tax sale, and defendant refusing to discontinue the proceedings for foreclosure, the plaintiff commenced this action to restrain the sale. The plaintiff had judgment at special term, which was affirmed by the general term, and defendant appealed.

The opinion of the Court by Davis, J., in which all concurred, announces in the opening sentence this proposition, that, “ by the condition of the bond and mortgage, the defendant undoubtedly had a right, after failure by the plaintiff to pay the taxes assessed on the mortgaged premises, to pay and discharge the same, and thereupon to collect the amount so paid by suit upon the bond or by foreclosure of the mortgage.” It is then held that a purchase at a tax sale is not a payment of the tax so as to enable the mortgagee to proceed for a foreclosure, and not being paid, the action could not be maintained.

This proposition is discussed at much length—which really disposed of the question on which the case was made to turn by the Court. The learned Judge then proceeds: “But it is urged that the failure of the plaintiff to pay the tax was a breach of the condition of the mortgage, and gave defendant a right to foreclose and collect the whole amount secured. There is no clause of the mortgage making the whole sum due on failure to pay the interest, or on breach of any condition.

The clause which authorizes the retention by the mortgagee of the whole amount secured after a sale of the premises does not have the effect claimed for it; nor do I think it would countervail the provision of the statute which requires a sale in parcels, when that is practicable, and prohibits a sale of more than sufficient to pay the amount actually due, with the expenses of sale. (3 R. S., 5th ed., p. 860, § 6.) But no right to foreclose would accrue upon a simple failure of the mortgagor to pay the taxes.

To give that right, it is essential that the holder of the mortgage shall have paid off and discharged the assessment or tax, otherwise no money has become due which the mortgagee is entitled to retain on a sale. The language of the mortgage settles this, for it provides that ‘ such assessments, taxes, and charges as shall have been paid by them ’ may be retained.” It will be observed that the learned Judge states, “ there is no clause in the mortgage making the whole sum due on failure to pay the interest or on breach of any condition.

The clause which authorizes the retention by the mortgagee of the whole amount secured after a sale of the premises does not have the effect claimed for it.” The clause in the mortgage is set forth above. It is in the power of sale, which provides that if default be made in the payment of taxes, etc. (see above), then and in such case the mortgagees were empowered to sell at public vendue, and out of the moneys arising from such sale or sales, to keep and retain in their hands the said sum of two thousand six hundred and forty dollars, together with such assessments, taxes, etc.

If such language does not authorize a party to proceed for a statutory foreclosure on failure to pay taxes by the mortgagor, it would be difficult to find any sufficient reason why. Words could not make it plainer, unless it be held that a power “ to sell the premises at public vendue ” does not vest such authority. But it is said by the learned Judge, there is no clause of the mortgage which makes the whole sum due, on failure to pay the interest, or on breach of any condition.

As to what is said of interest, it may be laid out of view, as all the interest had been paid, and the statement as to interest is correct; but as to the breach of any condition, the Judge was surely mistaken. There was a condition in the mortgage to pay all taxes, etc., and the right to sell the mortgaged premises was given on failure by the mortgagor to pay. How then can it be said it was not given on breach of any condition ? But it is said the clause which authorizes the collection of the moneys arising from the sales does not make the * whole amount due, and there is no clause in the mortgage to make it due.

Then the mortgagee is authorized to proceed to sell and retain out of the proceeds all the principal and taxes, etc., and still there is nothing due. What does such language mean ? Is it to be discarded as meaningless ? No repugnancy appears which would compel its being disregarded. Is it not the fair construction that the default occurring, the mortgagee is allowed to proceed for the whole amount of principal as due, to collect it and apply it as directed ?

Is not this implied as strongly and clearly as language could make it, and is it not true that “ all things that in law or usage are considered as incidental to a contract, or as necessary to carry it into effect, are implied therefrom”? (C. C., § 1656. The last clause of this

section is not applicable here, and is not quoted.) If he is allowed to sell, certainly the whole is due under the rule just above quoted. Further in regard to this case: no right to foreclose, it is said in the opinion, on simple failure of the mortgagor to pay the taxes. Why? The clause relating to the power of sale above quoted gives it in clear and plain words. It seems to us that the Judge was mistaken in saying the right df the mortgagee to proceed to sell only arose on payment of the taxes by her. The language employed speaks another way. The right to retain was given when paid by her.

The mortgagee was not bound to pay the taxes. The judgment so holds (Williams v. Townsend, 31 N. Y. 415), and the right to retain was only given where it was necessary to enable her to retain, i. e., when she paid. It was useless for any purpose until she had paid. The only reason this term as to payment of taxes was inserted was to make it clear that the mortgagee might retain when she did pay them.

It was not to abridge the right to proceed to sell before given, but to give authority to retain when paid, which payment might occur when the proceedings were pending, and which the mortgagee might be compelled to make to protect her security. Unless the judgment in the case cited proceeds on some rule peculiar to the jurisprudence of New York, and not stated in the opinion (for the reason that it was so well known to the Court that it was unnecessary to state it), we can not see how the conclusion reached by Davis, J., can be sustained.

The clause in the mortgage in this case is different from the one in the New York case, as construed by that Court.

It authorizes the mortgagee, on failure to pay the interest, or any part of it, according to the terms of the note, or on failure to perform any of the covenants hereinafter expressed, of which the covenant to pay taxes is one, to proceed to sell ike premises in the manner prescribed by la/w, and out of the money arising from the sale to retain the whole sum of $36,000, with interest as aforesaid, together with costs and charges of such sale, and lawyers’ fees, and the amount of all such other charges as are mentioned in the mortgage, and the surplus, if any there be, to be paid to the mortgagors.

The prior payment of the taxes was not essential to commence the action, and if it was, the mortgagee had paid them before commencing it. It is not apparent that any question has been made by counsel for appellants as to the consideration of the agreement, made by the above-quoted clause from the mortgage of 1877. It was sustained by sufficient consideration—the consideration which sustained the mortgage of 1877 sustained the agreement made by this clause.

This is evident from the language with which the clause commences, “It is further agreed and understood,” which places it in the same category with all the other promises of the mortgage agreement, and makes the same consideration applicable alike to all. The same consideration sustains each and every pact or promise in the agreement. “ Verba illata inesse videntur.” (Broom’s Leg. Maxims, 645, 646, et seq.) The words above quoted are words of reference. In other words, it may be said that every pact or promise in the mortgage springs out of, or is born of and fed by, the same consideration. (See notes to Roe v.

Tranmarr, 2 Smith’s L. C. 515, et seq.) In drawing instruments of any kind where a consideration is essential, it is not necessary, nor is it the practice, to repeat the consideration upon the insertion of every several promise or covenant. The mention of it once is generally considered sufficient. (C. C., §§ 1614, 1641.) Haggerty v. The Allaire Works, 5 Sandf. S. C. 231, is cited by counsel for appellants. To what point arising in the case it is applicable we can. not perceive.

In that case it was held that the interest on a bond and mortgage was properly computed at seven per cent, per annum, raised by agreement from six per cent, from a certain date in December, 1842. Two reasons were given: “1. Because the agreement for raising the interest from six to seven per cent, was valid in law, the consideration of forbearance being necessarily implied, and the continuance of the agreement being co-extensive with the forbearance; 2.

Because it was sufficiently proved that the agreement was adopted and acted upon by the defendants, and it was therefore unimportant whether it was originally made by Allaire under their authority.” We presume this judgment of the Court to be correct, but it is no authority to construe the covenant in the mortgage of 1877 above referred to, to be sustained by the consideration of forbearance, and that therefore the mortgagee agreed to forbear until the maturity of the note of June 1,1877, five years after date.

There being a sufficient consideration expressed in the mortgage of 1877, none can be implied, as was done in the case cited. “Expressum facit cessare taciturn.” (Broom’s Leg. Maxims, 630. See rules for

interpretation of contracts, C. C., division 3,

part 2, title 3.) The

section 1175, from Jones on Mortgages, a portion of which is quoted in brief for appellants, sustains the views taken in this opinion. (See the

section and cases cited in it, particularly Pope v. Durant, 26 Ia. 233; O’Connor v. Shipman, 48 How. Pr. 126.) Williams v. Townsend is referred to in it. That has been above considered. No further observations as to this citation of appellants are requisite. At the time the note of first of June, 1874, was executed by the defendants, Batchelder and his wife, a married woman was unable to make a contract for the payment of money. Such was the express language of

Section 167 of the Civil Code. (Butler v. Baber, 54 Cal. 178.) This

section was changed by the Legislature of 1873-4, so that a married woman could make such a contract and bind herself by note and mortgage. (Parry v. Kelley, 52 Cal. 334; Wood v. Orford, id. 412; Marlow v. Barlew, 53 id. 458; Alexander v. Bouton, 55 id. 19, 20.) But this did not go into effect until the first of July, 1874. Consequently the note of June 1, 1874, at the time of its execution, did not bind the wife. It is conceded by respondent that the note of June 1,1874, was not binding on the defendant, Maria B.

Batchelder, and never bound her. personally, and though the facts in the case show strong grounds to hold otherwise, in consequence of the recognition by her for a new consideration, in the clause quoted from the mortgage of 1877, of this note in all its terms as a valid obligation, such recognition having been made when the disability to contract for the payment of money no longer existed, yet as the point is conceded, we say nothing further in regard to it; intending by this to leave the point open for decision- should it again come before us.

The mortgage of 1874 and the other mortgages are, in our opinion, binding on Mrs. Batchelder, the above-named defendant. When the notes appearing in the record, other than the note of June 1,1874, were executed by the defendant Maria, she was competent to make such notes, and they bind her. It follows from the above that the Court below erred in rendering a personal judgment against Mrs. Batchelder on the note of June 1, 1874, and the interest on it, and the decree will be modified in that regard. In other respects the judgment is correct and is affirmed.

Counsel for respondent will prepare a decree modified in accordance with the views herein expressed, and present it on notice to the Chief Justice of this Court, Morrison, C. J., and Myrick and Sharpstein, JJ., concurred. After the foregoing decision was rendered, a rehearing was had in Bank, upon which the following decision was rendered : The Court : This case was heard before Department One of this Court, and its opinion filed June 24,1881. (7 Pac. C. L. J. 733.) Subsequently, a hearing before the Court in Bank was granted.

Such hearing having been had, an opinion by the Court in Bank was filed May 30,1882. (9 id. 515.) Thereafter a rehearing in Bank was granted. Such rehearing has been had. We are satisfied with the views expressed in the opinion of the Court in Bank; and for the reasons therein given, the Court now makes the same order, and gives the same judgment as therein contained. McKinstey, McKee, and Ross, JJ., dissented.