
    Abraham Quackenbush, Plaintiff, v. Daniel Mapes, Jr., et al., Defendants.
    (Supreme Court, New York Special Term,
    April, 1907.)
    Foreclosure of mortgages on land — Foreclosure by action and sale — Pleading and trial — Evidence — Burden of proof — Effect of seal.
    Evidence — Burden of proof — General principles — Effect of seal on mortgages.
    Mortgages — Construction and effect — Option to declare mortgage due.
    Limitation of actions — Accrual of cause of action — Time specified in agreement — Option to accelerate payment.
    In an action to foreclose a mortgage upon real estate, where the defendant alleges that the mortgage was executed without consideration, the burden is upon him to overcome by proof the presumption of consideration created by the seal upon the mortgage.
    A provision in a mortgage that, upon .default in the payment of interest, the whole amount shall become due immediately at the option of the mortgagee is for his benefit and cannot be taken advantage of by the mortgagor, either to permit him to pay the mortgage debt, or to set the Statute of Limitations running, before the time designated for payment.
    Actions to foreclose mortgages.
    George B. Boyd (Charles N. Morgan, of counsel), for plaintiff.
    C. W. H. Arnold, for defendant.
   Leventritt, J.

In these actions to foreclose mortgages two defenses are urged: 1. Want of consideration, and, 2, the Statute of Limitations. In support of the first the defendants contend and attempt to prove that the mortgages were executed and delivered with others to the mortgagee, plaintiff’s assignor, by the mortgagor, as instruments of accommodation in order to enable the mortgagor to procure funds looking to the improvement of the mortgaged premises, pursuant to certain agreements between plaintiff’s assignor and the mortgagor’s father, a former owner. The burden which the defendants have assumed is that of overcoming by proof the presumption of consideration created by the seals of the mortgages. Four mortgages were executed to plaintiff’s assignor as defendants contend in furtherance of the objects sought to be accomplished by the agreements mentioned. Two of these have been paid. Letters from the plaintiff’s assignor to the mortgagor establish the fact that the former made advances from time to time of considerable sums of money. These facts are strongly indicative of ample consideration and they are not controverted by the terms of the agreement relied upon nor by any of the evidence adduced.

To sustain the defense of the Statute of Limitations the defendants contend that, although the mortgages bear date June 1, 1883, and were payable June 1, 1886, the mortgagor’s default in the payment of the first instalment of interest on December 1, 1883, and for thirty days thereafter, set the statute in operation from January 1, 1884, and that, therefore, these actions commenced in 1906 are barred.

Each of the mortgages contained a clause which provided that, in the event of a default in the payment of any interest, tax or assessment, the principal sum “ with all arrearage of interest thereon shall at the option of the said party of the second part, his executors, administrators or assigns become and be due and payable immediately thereafter.” Clauses of this character are solely for the benefit of the mortgagee. They cannot be taken advantage of by the mortgagor either to permit him to pay the mortgage debt or to set the Statute of Limitations running against the mortgagee as to the principal of the mortgage. Jones Mort., § 1210; Thomas Mort., § 229. . While there is no direct adjudication of the question in this State, authority in support of the conclusion stated is found in other jurisdictions where the Statute of Limitations upon this subject corresponds substantially with our own. First Flat. Bank v. Parker, 28 Wash. 234, 237; Capehart v. Dettrick, 91 N. C. 344; Richardson v. Warner, 28 Fed. Rep. 343. The mortgagee in the exercise of his option may foreclose or, as in the case at bar, he may waive the default and continue the mortgage to maturity.

If, as the defendants maintain, the plaintiffs assignor was interested in the development of the premises in question, it is not unreasonable to assume that while advancing money for improvements he would forbear taking advantage of his security.

The defendants have failed to sustain the burden resting upon them and there must be judgment for the plaintiff.  