Mobray v. Leckie

Bartol, C. J., delivered the opinion of the Court. The mortgage exhibited with the bill of complaint was executed by Hooper R. Mobray and wife, on the 3rd day of June 1871, and was intended to secure to the mortgagee Mary L. Mobray, the sum of $1415.73, with interest thereon from its date. The principal sum to be paid in four equal annual instalments, counting from May 1st 1873. The whole accruing interest to be paid annually.

Consequently the interest for one year fell due on the 3rd day of June 1872. The mortgage contains the following stipulation : “ And in default of payment of any of said instalments, or the annually accruing interest, the whole sum to become due and payable, and payment to be enforced as hereinafter proviHed..” After the mortgage was executed the mortgagor conveyed the equity of redemption to Alfred J. Mobray one of the appellants. The mortgagee married the appellee and died on the 25th day of May 1872. There being a default, and failure to pay the interest due June 3rd 1872, the bill was filed on the 1st day of November 1872, by the appellee, as surviving husband of the mortgagee, to collect the mortgage debt, alleging the whole to be due and demandable.

There can be no doubt or question about the construction of the mortgage, its terms are plain and unambiguous, and expressly provide that in default of payment of the annually accruing interest, the whole debt shall be due and payable. This is a l'egal and valid stipulation ; the defence relied on by the appellant that it is in the nature of a penalty or forfeiture which a Court of Equity will not enforce, is fully answered by the case of Schooley & Price vs. Romain, 31 Md., 574 , where a similar condition in a mortgage was enforced, and was decided not to be in the nature of a penalty or forfeiture. In this respect there is no substantial difference between this case, and the case of Schooley & Price vs. Romain, which disposes of this question. ⁴⁷⁷ The appellant Alfred J. Mobray alleges as excuses for his failure to pay the interest when due, 1st. That be was restrained by feelings of delicacy from intruding upon the appellee with affairs of business, so soon after the death of his wife, who was also the sister of the appellant. 2nd.

That he did not know whether she had left a will or died intestate, and consequently did not know who was entitled to receive the money. Brd. That there were ante-nuptial debts due by the deceased, and therefore the husband was not entitled, to collect the mortgage debt, or the interest thereon, without first taking out letters of administration. 4th. He also alleges in his defence that he was ready to pay the interest when it might ho demanded, and had offered to do so. 5tb.

That the amount of interest due has been paid into Court after the institution of this suit. These several defences will be considered in their order. 1st. The motives or feelings of delicacy urged by the appellant, afford no legal excuse for his failure to comply with the contract. Mrs. Leckie died eight days before the interest became due, and the evidence shows that the appellant made no offer or attempt to pay the money, or any effort to ascertain whether she had died intestate, and in feet paid no attention to the matter until some weeks elapsed; when payment of