
    SOWARBY against RUSSELL.
    
      New York Superior Court; General Term,
    
    
      May, 1868.
    Foreclosure of Mortgage. —Burden of Proof under Thirty Bays’ Clause.
    On trial of an action to foreclose a mortgage, brought under a clause providing that when interest has remained in arrear for thirty days, the whole principal sum shall, at the option of the mortgagee, &c., become due and payable, the mere production of the bond and mortgage is sufficient,—the thirty days appearing to have elapsed since a day named in the mortgage for a payment of interest,—to entitle the plaintiff to a decree.
    It is nut necessary for the plaintiff to prove that the interest has not been paid.
    Appeal from a judgment of foreclosure.
    This action was brought in October, 1867, to foreclose a mortgage for $800, falling due March 9, 1869.
    The mortgage, however, contained a provision in the following terms:
    “And it is hereby expressly agreed that, should any default be made in the payment of the said interest, or of any part thereof, on any day whenever the same is made payable as above expressed, and should the same remain unpaid and in arrear for the space of thirty days, then and from thenceforth, that is to say, after the lapse of the said thirty days, the aforesaid principal sum of $800, with all arrearages of interest thereon, shall, at the option of the party of the second part, his administrators or assigns, become and be due and payable immediately thereafter, although the period above limited for the payment thereof may not then have expired,” &c.
    The complaint alleged that the mortgagor had failed to comply with the condition, “by omitting to pay any interest thereon, and that more than thirty days have elapsed since the interest became due; by reason whereof, the whole principal sum, with the arrearages of interest, have become due and payable.”
    The answer substantially denied that the interest was due or unpaid.
    • Upon the trial, which took place before Chief Justice Robebtsoit, at special term, the plaintiff offered and read in evidence the bond and mortgage, and rested.
    The defendant then moved to dismiss the complaint, and for judgment in favor of the defendant, upon the ground that the plaintiff had made no proof of default in payment of interest, rendering the mortgage due.
    The court denied the motion, and rendered judgment for the plaintiff; from which the defendant appealed.
    
      W. J. Foster and Elbridge T. Gerry, for the appellant.
    I. There was no evidence of any default in the pay ment of interest. 1. .All the evidence offered by the plaintiff was the bond, mortgage and assignment to him. There was no legal presumption of default in payment of interest, from the mere fact that these instruments were in the possession of the plaintiff. The principal of the bond not falling due until 1869, the plaintiff would still retain possession of it to that time, even if the interest was paid regularly, and the presumption is that it was paid regularly (Ferguson v. Ferguson (2 Comst.) 2 N. Y., 364). The case thus differs from that of an action "brought on a note or other security past due, where possession of the security is presumptive evidence of its non-payment (Story Prom. Notes, § 381). 2. “ The production of the "bond and mortgage was not evidence of the amount which he was entitled to receive by reason of the specific character belonging to them. Hor is his own assertion in the bill, contradicted as it is by the answer, such evidence. The burden was on the complainant to prove the amount due (De Mott v. Benson, 4 Edw.Ch., 306).
    II. The onus of proving such default was on the plaintiff. His omission to prove it was fatal to his right to recover. 1. This alleged default was the gravamen of the suit, and the only ground on which he claimed a decree in his favor. But for such default he could not have filed his bill to foreclose until the principal sum fell" due in 1869. 2. The allegation of fact (soil, the default) was traversed by the appellant’s answer. A direct issue was thus raised on the fact. 3. How the rule of law is, that a traverse of our allegation of fact throws the burden of proof on the other party; and where the non-performance of an act is relied on and pleaded as the gist of an action, if traversed, the plaintiff must prove it as alleged. In such case the assertion that a party has. not performed, &c., is affirmative in fact, even though it be negative in form (Roscoe’s Ev. at N. P., 90 ; Best on Ev., 408, 413; Powell on Ev., 183). It is uniformly so held where the non-performance of a condition works a forfeiture, and an action is brought to obtain judgment of forfeiture (Doe v. Whitehead, 8 Ad. & El., 571; Doe v. Robson, 2 Carr. & P., 245; Gregory v. Tuffs, 6 Id., 271; Calder v. Rutherford, 3 Brod. & B., 302). So, in an action by a shipowner for loading with combustibles without due notice, the plaintiff was required to prove absence of notice (Williams v. East India Co., 3 East, 193). And in a recent Illinois case, which was an action of ejectment where the plaintiff sought to recover on the ground that the defendant had not performed his covenants in neglecting to pay the notes given for the purchase of the land in controversy, the court held that the "burden of proof was on the plaintiff to show such default (Roland v. Fischer, 30 Ill., 224). 4. Indeed, “the best tests that can be devised for ascertaining on whom the burden of proof lies, are, first, to consider which party would succeed if no evidence were given on either side; and secondly, to examine what would be the effect of striking out of the record the allegation to be proved; bearing in mind that the onus must lie on whichever party would fail if either of these steps were pursued” (1 Tayl. Ev., § 269, and numerous cases there cited ; Mills v. Barber, 1 Mees. & W., 425; Soward v. Leggatt, 7 Carr. & P., 613; S. C., Best on Ev., 361-3 ; Belcher v. McIntosh, 8 Carr. & P., 720). 5. Proof of the default alleged was also essential as a foundation on which to compute the interest. No definite amount was demanded in the summons, and without computation no definite judgment could be rendered (Security Fire Ins. Co. v. Martin, 15 Abb. Pr., 479). Besides, the appellant was not the obligor, nor chargeable personally with payment of the interest on the bond. Hence the fact of any default in its payment was more peculiarly within the knowledge of the parties to the bond. It could easily have been proved by the mortgagee, who was called, but withdrawn.
    III. There was no proof of any demand of the interest alleged to be due prior to the commencement of this suit. This was necessary; and to this omission there was a special exception. 1. If, by the terms of the interest condition or thirty days’ clause in the mortgage, the principal sum became absolutely due upon a default in the payment of interest, there would be ground to contend that the case was analogous to those of notes payable on demand, &c., &c., in which it has been held that the commencement of a suit is a sufficient demand. 2. But in the present case, the principal debt does not become absolutely payable on such default, but only becomes so at the-option of the mortgagee (or his representative). The latter, in other words, may hold the mortgage as an investment, or require its payment, as he pleases. Until the mortgagor be informed of such decision, no duty is incumbent on him to make payment. 3. Besides, by death, assignment, or the like, this option may have been transferred (as it was in this case) from the original mortgagee to a representative. The mortgagor is entitled to notice in whom the option is vested, at the time when it is exercised. 4. This suit being in equity, nothing is allowable against a mortgagor which is inequitable. To allow the commencement of a suit to be treated as an exercise of the option, is inequitable, in that it enables the mortgagee to charge the mortgagor with costs for the exercise by the power of his option. 5. This is not an action for the debt, but a suit in equity to enforce a collateral security. A suit on the bond might be equivalent to a demand of the debt represented by it, on the principle above stated, but not a suit in equity like the present.
    
      William Tracy, for the respondent;
    contended that the plaintiff having proved the bond and mortgage, which showed the indebtedness as alleged, it was for the defendant to give any proof she might have to prevent a recovery. She gave none, and the plaintiff was entitled to the judgment ordered (People v. Superior Court, 19 Wend., 104; Noyes v. Clark, 7 Paige, 179).
   By the Court.-Monell, J.

The only question in tin’s case is, whether the mere production of the bond and mortgage was sufficient evidence of default in the payment of interest to authorize a judgment declaring .the whole principal sum secured by the mortgage to be .due and immediately payable.

It was conceded that ordinarily no other or further proof would be necessary ; but it was attempted to distinguish this case ; and it was insisted that where a mortgagee designs to avail himself of a breach of a covenant, .and to claim the whole principal to be due by reason of the non-payment of interest, he must show default by other proof. In other words, that he must prove that the interest has not "been paid.

It is a general principle that written instruments for the payment of money require no proof of default, and the burden of showing there has been no default rests upon the party charged with the default. In actions, therefore, for the recovery of money alleged to be due upon a written instrument, the production of the instrument and giving it in evidence is all the proof required, and the affirmative of showing there is nothing due lies upon the defendant.

I am unable to distinguish the case before me from the ordinary case. The proof required in any case is, that default has been made in the payment of interest. All that need be proved in any case, is, such default; and so far as regards the proof, the consequences of the default are quite immaterial. Therefore, if the production of a bond and mortgage is sufficient proof, in a common case, that the interest is unpaid, and will authorize a judgment for such interest, then the same proof will be sufficient as the foundation for any further judgment appropriate to the case. If it appears from the bond that the pay day has passed, this is presumptive evidence that the interest is due and unpaid. Anything tending to discharge the obligation must be averred by the defendant,- who necessarily holds the affirmative of the issue. Ei incumbit probatio qui clicit, non qui negat.

The covenant in the mortgage is, that if any default be made in the payment of interest, and such default continue for thirty days, the mortgagee may elect to have the whole principal become due. I do not see that any other proof than such as was offered in this case could have been required. A mortgagee, to avail himself of a breach of a covenant, cannot be required to prove a negative.

I think the judgment should be affirmed, with costs.

Judgment affirmed. 
      
      Present, Monell, Garvin and Jones, .JJ.
     