
    The Union Central Life Insurance Company v. Bonnell.
    Where, by the original condition in a mortgage, the debt secured by it was-payable sixty days after demand, a new agreement, extending the time-of payment to a day certain, when binding, has the effect, in equity, of modifying the original condition of the mortgage, to the same extent as if the terms of the new agreement were incorporated into the condition.
    Error to the District Court of Butler county.
    The original petition in this case was filed in the court of common pleas on the 12th of September, 1874.
    The pleadings and evidence in the case are the same as. in the case of the plaintiff in error against James P. Curtis {ante, p. 343), with one exception.
    The exception consists of an extension of time granted in this case for the payment of the note secured by the mortgage.
    The following is a copy of the note, with its indorsements :
    •“ 800.00. Cincinnati, November 19,1867.
    “ On demand, I promise to pay to the order of the Home Mutual Life Insurance Company, of Cincinnati, eight hundred dollars, at their office, with interest at six per cent, per .annum, until paid (said interest to be paid annually), value received. Daniel V. Bonnell.
    “ (Indorser,) Geo. L. Masters.
    “ Interest paid to January 1,1871. — J. W. Iredell, Jr., Sec.” “ Home Mutual Life Ins. Co. — John Cochnower, Pres’t.”
    The condition of defeasance in the mortgage is as follows :
    “ Provided, nevertheless, that if the note for the sum of •eight hundred dollars, hearing date of November 19, 1867, •signed by Dauiel V. Bonnell and Geo. L. Masters, and payable to the said Home Mutual Life Insurance Company, on demand, shall be paid, with interest, within sixty (60) days after such demand is made by the auditor of the State of ‘Ohio, for the said Home Mutual Life Insurance Company, then these presents shall be void.”
    The agreement for the extension of time is shown by the following proposition of the plaintiff in error, and the acceptance thereof by the defendant:
    “ Oeeice oe the Union Central Liee Insurance Company, “ South-east Corner Fourth and Vine street,
    “ Cincinnati, December 21,1871.
    “D. V. Bonnell, Esq. — Dear Sir: This company holds your demand note for $800, payable to the Home Mutual Life Insurance Company; said note is secured by mortgage. On the 14th of October, 1871, when said note was transferred to this company, in part payment for reinsuring the •outstanding risks of the Home Mutual Life Insurance Company, this company agreed to grant an extension of three years for the payment of all demand notes given by stockholders, secured by mortgage, on condition of an agreement, on their paid, to pay six per cent, interest per annum on same from 14th October, 1871. Please state whether you desire the extension, and will agree to pay the six per cent, interest from that date.
    “ Respectfully, J. M. Phillips, President.”
    “ Cincinnati, March 4,1872.
    . “ I hereby agree to accept the conditions expressed above, and pay six per cent, interest on the demand note given by me to the Home Mutual Life Insurance Company, and pay the interest annually. D. Y. Bonnell.”
    The issues were found for the defendant, and the petition was dismissed. The petition in error is prosecuted to reverse this judgment and set aside the findings.
    Matthews, Ramsey § Matthews, for plaintiff in error.
    
      Thomas Millikin and C. D. Robertson, for defendant in error.
    [Counsel in this case submitted briefs making substantially the same argument as is reported in the Ehrman case, ante, 824. — Rep.]
   White, J.

There was a variance between the averments in the petition and the evidence, in respect to the time at which the mortgage debt became due. No reference was made, in the petition, to the agreement for the extension of time. The petition counted on the original condition of the mortgage; but as the agreement for extension was in evidence, and as no objection was made on the ground of variance, the variance is to be regarded, under the code, ns immaterial. Hoffman v. Gordon., 15 Ohio St. 212.

The effect of the agreement of extension was to work a novation of the mortgage debt, as respects the time of payment. By the original condition of the mortgage, the debt was payable sixty days after demand. By the new agreement tbe principal became payable in three years from October 13, 1871, and the interest annually. The effect of the agreement, in equity, was to modify the original condition of the mortgage, to the same extent as if the terms of the agreement had been incorporated into the condition. As thus modified, the condition of the mortgage was for the payment of the interest annually, and the principal in three years from October 13, 1871.

At the commencement of the suit, two installments of interest were due; hence the suit was not prematurely brought, as was held to be the case in the action against Curtis. (Ante, p. 343.)

The other defenses were adjudged invalid in the case of Curtis; and the grounds of that judgment apply equally to this case, and need not be here repeated.

The judgment is reversed, the findings set aside, and the cause remanded for further proceedings.  