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right to pay the taxes at any time before the lands are sold, a forfeiture under the acceleration clause could not be declared, at least, until the day of the sale for nonpayment of the tax. See Gray v. Robertson (1898) 174 Ill. 242, 51 N. E. 248.

An allegation of a custom in delaying payment of taxes is no defense. Parker v. Olliver (Ala.) supra.

It has been held that, where a mortgage contains a covenant by the mortgagor to pay the taxes when due, and gives the mortgagee the power of sale in case of the mortgagor's failure to pay the principal or interest when due, or in case of the nonpayment of any taxes, a mere naked breach of the covenant to pay the taxes gives the mortgagee no right to foreclose. Heller v. Neeves (1896) 93 Wis. 637, 67 N. W. 923, 68 N. W. 412. There was no other covenant in this case touching the payment of taxes or the effect of nonpayment, nor any stipulation that the mortgagee could pay the tax and recover the amount as part of the debt, or that the debt should become due in default of payment, and it appears that the plaintiff was the second mortgagee, and that the amount which he had paid out on account of the delinquent taxes had been repaid to him by the first mortgagee, so that, at the time the action was tried, nothing was due the plaintiff on account of taxes.

And in Newark Trunk Co. v. Clark (1922) N. J. Eq. –, 118 Atl. 263, it was said that the failure to pay taxes within the time specified by the acceleration clause matured the mortgage, unless it could be shown that the default was in some way attributable to the fault of the mortgagee. And see Arkenburgh v. Lakeside Residence Asso. (1897) 56 N. J. Eq. 102, 38 Atl. 297.

Where taxes for the preceding year are due and in arrear on the 1st day of January, and from that date bear interest, if unpaid, there has been a default in the payment of taxes within the meaning of the acceleration clause in a mortgage by which the mortgagee covenanted to pay taxes, "when legally demandable,” though no notice had

been given the mortgagor by the col. lector, as required by the Code in order to enforce collection, for they are none the less due and in arrear in the absence of such notice, as taxes must be necessarily due before payment can be enforced, and when due are legally demandable, though summary proceedings to compel payment may not be at once resorted to. Condon v. Maynard (1889) 71 Md. 601, 18 Atl. 957.

It has been said that an agreement to pay taxes before they become delinquent is not fulfilled by paying such taxes on the day they become delinquent. National L. Ins. Co. v. Butler (1901) 61 Neb. 449, 87 Am. St. Rep. 462, 85 N. W. 437, where it was held that, as the mortgage was conditioned on the mortgagor's default in that respect and the mortgagee could pay the delinquent taxes and add such payment to the original debt, a payment of taxes by the mortgagee on the 1st day of December was not premature and unauthorized, where the statute provided, “on the 1st day of December next succeeding the levy thereof, all unpaid taxes shall become delinquent,” and the mortgagee could not only make the payment which the debtor had failed to make, but could also at its option declare the whole debt due, and immediately proceed to collect it by suit.

And it has been held that where the mortgagee has exercised his option to declare the mortgage debt due for failure of the mortgagor to pay taxes by filing a bill to foreclose, alleging that the taxes have become delinquent, it is no defense to allege that the failure of the mortgagor to pay taxes when they become due was in accordance with a long-established custom to pay taxes for the preceding year before a certain date of the following year, and that the mortgagee had, after the filing of the bill, paid the taxes and offered to pay the complainant all costs which had accrued, for the contingency of the stipulation for the acceleration of the mortgage was the delinquency in payment of the taxes, and the plea does not contradict the happening of the contingency. Parker v. Olliver (1894) 106 Ala. 549, 18 So. 40.

In Brockway v. McClun (1909) 148 Ill. App. 465, affirmed in (1909) 243 Ill. 196, 90 N. E. 374, where it was contended that an action to foreclose a mortgage for default in payment of taxes under an acceleration clause was prematurely brought, inasmuch as the mortgage had been extended for five years, it was said that the mortgagee had the power to declare the whole debt due and file a bill with that object in view, without any further notice of his intention to do so than is to be implied from the commencement of the foreclosure proceedings.

In Buffalo Center Land Invest. Co. v. Swigart (1916) 176 Iowa, 422, 156 N. W. 701, it was held that, where taxes are due on the 1st of January, and are delinquent unless paid before the 1st of April, the mortgagee is in default within the meaning of the acceleration clause in the mortgage, where he did nothing toward paying the taxes until the 1st of September, after the foreclosure action was instituted for default in payment.

In Gray V. Robertson (1898) 174 III. 242, 51 N. E. 248, it was said that the right of the creditor to foreclose a trust deed which contained an acceleration clause for the nonpayment of taxes accrued upon the failure of the debtor to keep and observe the covenant in relation to the payment of taxes and the protection of the property from sale for delinquent taxes and assessments.

In Farmers Security Bank v. Martin (1915) 29 N. D. 269, L.R.A.1916D, 432, 150 N. W. 572, the court stated that any time after the taxes became delinquent, in the absence of equitable reasons preventing it, the mortgagors were in default under the terms of the acceleration clause, and the mortgage could be foreclosed under the power granted on account of the default, such power being valid and enforceable in equity. Tender or payment after taxes are delinquent.

A majority of the courts hold that, after having failed to pay the taxes on property when they became due,

the mortgagor may thereafter pay the taxes and thus bar the mortgagee's right to foreclose for such default, where such payment, or a tender thereof, is made before the foreclosure suit is commenced. Shaw v. Wellman (1891) 59 Hun, 447, 13 N. Y. Supp. 527; Noyes v. Anderson (1891) 124 N. Y. 175, 26 N. E. 316; Ver Planck v. Godfrey (1899) 42 App. Div. 16, 58 N. Y. Supp. 784; Germania L. Ins. Co. v. Potter (1908) 124 App. Div. 814, 109 N. Y. Supp. 435; Fleming v. Franing (1908) 22 Okla. 644, 22 L.R.A. (N.S.) 360, 132 Am. St. Rep. 658, 98. Pac. 961; Smalley v. Renken (1892) 85 Iowa, 612, 52 N. W. 507; HUGHES v. KAW INVEST. Co. (reported herewith) ante, 727; Swon V. Stevens (1898) 143 Mo. 384, 45 S. W. 270.

Some of the courts base their decisions on the ground that as the acceleration clause is put in for the purpose of protecting the mortgagee from loss or impairment of his security, a payment before actual sale of the premises fulfils that purpose. Smalley V. Renken (1892) 85 Iowa, 612, 52 N. W. 507; Ver Planck v. Godfrey (1899) 42 App. Div. 16, 58 N. Y. Supp. 784; Shaw v. Wellman (N. Y.) supra.

And it has been said that the failure to pay taxes is a mere technical default, which is cured by prompt payment by the mortgagor when his attention is called thereto. Germania L. Ins. Co. v. Potter (1908) 124 App. Div. 814, 109 N. Y. Supp. 435, supra.

And it has been held that the mortgagee's right to take advantage of the acceleration clause is devested by the mortgagor paying the delinquent taxes after the foreclosure suit is commenced. Shaw v. Wellman and Germania L. Ins. Co. v. Potter (N. Y.) supra.

But the better view seems to be that a payment, or tender of payment, of the delinquent taxes after the foreclosure suit is commenced under an acceleration clause, is too late to bar the mortgagee's right to foreclose for default in payment of taxes. Stanclift y. Norton (1873) 11 Kan. 218; Lotterer v. Leon (1921) 138 Md. 318, 113 Atl. 887; Plummer v. Park (1901)

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62 Neb. 665, 87 N. W. 534; Hockett v. concerned. To justify a forfeiture Burns (1911) 90 Neb. 1, 132 N. W. 718; under such circumstances would work Arkenburgh v. Lakeside Residence an injustice that the court ought not to Asso. (1897) 56 N. J. Eq. 102, 38 Atl. permit. We think the payment of the 297.

taxes, after a breach of the condition Some courts have held that a tender for their payment, and in a way that or payment after the mortgagee has no prejudice could result because of given notice of his intention to fore- the default, and before suit brought close is too late. Thompson v. Hirt to declare the debt due because of the (1923) 195 Iowa, 582, 191 N. W. 365; default in payment, is a bar to such Stewart v. McCaddin (1908) 107 Md. a proceeding." 314, 68 Atl. 577.

Under a mortgage clause providing And it has been held that the fail- that the whole amount of the mort. ure of the mortgagor to pay the taxes gage debt shall become due at the absolutely accelerates the mortgage. option of the mortgagee, for default Newark Trunk Co. v. Clark (1922) in payment of taxes before the same N. J. Eq. – 118 Atl. 263.

become delinquent, a default and subIn Smalley V. Renken (1892) 85 sequent sale of the mortgaged propIowa, 612, 52 N. W. 507, the mortgage erty does not entitle the mortgagee to stipulated that if default should be foreclose, where all taxes, penalties, made in the payment of the principal and interest lawfully assessed against or interest secured thereby, or of the the said property have been fully paid taxes assessed on the premises, and the off and discharged by the mortgagor same should remain unpaid for a space and notice thereof given to the mortof thirty days, the whole indebtedness

gagee before the foreclosure suit was should become due; under this clause instituted. Fleming Franing the mortgagee commenced an action (1908) 22 Okla. 644, 22 L.R.A. (N.S.) to foreclose, based on the nonpayment

360, 132 Am. St. Rep. 658, 98 Pac. 961. of interest at a time when taxes were In Ver Planck v. Godfrey (1899) 42 in default within the meaning of the

App. Div. 16, 58 N. Y. Supp. 784, the acceleration clause, but such default

mortgagee notified the mortgagor by was not stated as a ground for fore- letter of an election to consider the closure; the mortgagor later paid the whole amount of the debt due and paytaxes and thereafter the plaintiff able on the ground that the mortgagor amended his foreclosure petition by

had failed to pay the taxes; the mortalleging that the debt had matured on

gagor immediately tendered the the failure to pay taxes, and the court amount of the taxes to the mortgagee's held that as the stipulation for the attorney, and, upon his refusal to acpayment of taxes was intended to pro- cept the same, paid the taxes to the tect the mortgagee from loss or im- proper tax officer and exhibited the pairment of his security, that purpose tax receipts to the mortgagee's atwas fulfilled by the payment of taxes torney. In reversing a decree of forebefore the amendment of the petition, closure and order of sale of the mortand the mortgagee was not thereafter gaged premises, where the summons entitled to foreclosure on that ground. had not been serve on the defendant The court stated: “At the filing of until after the plaintiff had actual the amendment every right of the knowledge that the taxes had been plaintiff in this respect was fully pro- paid, the court stated that it was at a tected. The object of the condition loss to understand upon what equitaof the mortgage was to enable the ble principle a judgment of foreplaintiff to treat the debt as due, and closure could be decreed, for, at most, save himself from loss because of the there was but a technical default in default. After the payment of the the payment of the taxes, and since taxes, all such liability for loss was they had been paid by the mortgagor at an end. His situation was exactly before the commencement of the acas if there had been no default as far tion, the plaintiff was not injured by as the conditions for forfeiture were the default, nor had her security been

impaired or diminished, but the par- ly tendered the amount of taxes paid ties were restored to their original by the mortgagee, with interest and position.

cost of the foreclosure action up to In Noyes V. Anderson (1891) 124 that time, which the mortgagee refused N. Y. 175, 26 N. E. 316, the mortgagor, to accept. In reversing the judgment after the mortgage was due, secured of the trial court in favor of the mortan agreement from the mortgagee gagee, and directing that the mortthat he would not enforce the mort- gagor be permitted to repay to the gage for a period of time, provided mortgagee the taxes which it had paid, that no taxes or assessments on the with interest thereon, it was stated premises became due and remained that the failure of the mortgagor to unpaid and in arrears for more than pay the taxes on the first day on which thirty days; a sewer assessment be- it was possible to pay them was manicame in arrears within the meaning festly a merely technical default, and of the mortgage clause, which, through that a court of equity would not enfault of the city authorities, was un- tertain an action to foreclose a mortknown to the mortgagor, but which she gage on account of such default when promptly paid when her attention was it appeared that the taxes were called to it, on the day previous to the promptly paid by the mortgagor when service of the summons in a foreclo- his attention was called to the default, sure proceeding on the ground that before the action was commenced, as taxes were in arrears, and the court the mortgagor was not injured thereheld that a judgment absolute should by; and although it was true that in be directed for the defendant, to the the case at bar the action was comeffect that she be relieved of the con- menced before the offer to repay was sequences of her default in the pay- made, this was because the action was ment of such assessment. It is to be begun so quickly that there was no noted that the decision is placed on opportunity to do so, and as soon as the ground that the default of which it became apparent that the mortgagee the mortgagee sought to avail himself was insisting upon his option to dewould result in a forfeiture from clare the whole debt due, the mortwhich the court of equity had the pow- gagee tendered all taxes, with interer to relieve.

est thereon. In Swon v. Stevens (1898) 143 Mo. And it has been held that a supple384, 45 S. W. 270, where the mort- mental answer alleging payment of gagees sold the premises for the taxes after the institution of a suit breach of the mortgagors' agreement

to foreclose a mortgage for nonpayto pay taxes promptly, it was held that ment of taxes, as provided in an acthe sale was wholly unauthorized, and celeration clause, constitutes a comwas voidable, where the taxes were plete defense to the action, since the paid between the time when the prop- payment fully restores all rights inerty was advertised for sale and the tended to be protected by that part of actual sale thereof.

the mortgage, and indemnifies the In Germania L. Ins. Co. v. Potter mortgagee or his assignee against all (1908) 124 App. Div. 814, 109 N. Y. possible prejudice or loss arising from Supp. 435, the mortgage provided that such default. Shaw V. Wellman the whole debt should become due and (1891) 59 Hun, 447, 13 N. Y. Supp. payable at the election of the mort- 527. gagee upon the failure of the mort- But it has been held that after the gagor to pay taxes, and the mortgagor mortgagee has exercised his option, failed to pay the taxes on the day on given him by the mortgage, to declare which they fell due; the mortgagor the mortgage debt due for nonpaypaid the taxes on the following day, ment of taxes, by commencing an acand elected to declare the whole debt tion to foreclose on that ground, a due, and on the same day began a fore- subsequent payment of the taxes by closure action; the mortgagor, after the mortgagor after the commencebeing served with process, immediate- ment of the action does not deprive the mortgagee of the right secured by of such default the whole mortgage the exercise of his option. Plummer debt was due, and that the payment v. Park (1901) 62 Neb. 665, 87 N. W. of the taxes after the decree for sale 534. And see Hockett v. Burns (1911) of the property did not obliterate the 90 Neb. 1, 132 N. W. 718, where it is default or devest the mortgagee of his said that the plaintiff's right to fore- right to sell, founded on such declose is not defeated by the payment fault. of the delinquent taxes by the mort- It has been held that where the gagor after the commencement of the mortgagor, who was in default in paysuit to foreclose, but before the de- ment of both interest and taxes, tencree.

dered the amount thereof after notice And where the mortgaged premises by the mortgagee of his intention to had been sold for unpaid taxes and the foreclose for nonpayment of taxes and mortgagee had redeemed from the tax interest under an acceleration clause sale, it was held in Stanclift v. Norton in the mortgage, the tender did not (1873) 11 Kan. 218, in an action to devest the mortgagee of his right to foreclose the mortgage, which provid- exercise his option of foreclosing, noted for the acceleration of the mortgage withstanding that, at the time the debt upon default in payment of taxes, tender was made, the foreclosure acthat there was no error in sustaining tion had not been commenced. Stewa demurrer to the defense, which al- art v. McCaddin (1908) 107 Md. 314, leged that after the filing of the peti- 68 Atl. 571. tion to the foreclosure proceedings, And in Thompson v. Hirt (1923) 195 the mortgagor had tendered to the Iowa, 582, 191 N. W. 365, where the mortgagee the full amount of the mortgage provided for the acceleration taxes, of the penalty, and of all costs of the maturity of the debt secured, accrued of the tax sale, which tender upon default by the mortgagor in paywas refused, and further, that the ment of taxes or assessments, it was mortgagor repeated the tender and held that a tender by the mortgagor brought the money into court, for, by of the amount of an assessment which the express terms of the contract, the he had previously refused to pay was entire amount of the debt was to be- too late, when it was made after the come due upon the failure of the mortgagee had redeemed the property mortgagor to pay taxes.

from the tax sale, and after he had And in Arkenburgh v. Lakeside Resi- served notice of his election to proceed dence Asso. (1897) 56 N. J. Eq. 102, 38

under the acceleration clause. Atl. 297, it was held that the failure And it has been held that the failure of the mortgagor to pay taxes on the of the mortgagor to pay taxes, which premises within ninety days after they are in arrears, within the time specibecame due, as provided in an acceler

fied in an acceleration clause in the ation clause, matured the mortgage,

mortgage, matures the mortgage unand the mortgagee's rights were not

less it is shown that the lapse is ataffected by the fact that the taxes were

tributable in some manner to the conpaid after the filing of the bill to fore

duct of the mortgagee, and the payclose.

ment of the taxes after the expiration And in Lotterer v. Leon (1921) 138

of the time limited in the mortgage, Md. 318, 113 Atl. 887, where the mort- but before the bill to foreclose is filed, gagor covenanted to pay taxes when does not affect the operation of the legally payable, and the mortgage fur- acceleration clause. Newark Trunk ther provided that, in case of default Co. v. Clark (1922) N. J. Eq. – being made in any covenant or condi- 118 Atl. 263. The court admitted, howtion therein contained, the debt secured ever, that there were authorities in should be due and payable at once, other jurisdictions which held that, as and the mortgagor failed to pay the the stipulation maturing a mortgage taxes, it was held that it was clear for the nonpayment of taxes was inunder the terms of the mortgage that tended to preserve the security, if the he was in default, and in consequence taxes were paid before, and even after,

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