
    RAUCH v. SEIP.
    Mortgages—Taxes—Interest.
    The mortgagee in a mortgage which provides that the mortgagor shall pay interest “at the rate of 6 per cent, per annum if the mortgagee pays the taxes, or otherwise, if the mortgagor pays all taxes assessed on the mortgage, to be computed at 5½ per cent.,” is entitled to interest at 6 per cent, where no assessment whatever is made upon the mortgage.
    Error to Monroe; Kinne, J.
    Submitted April 14, 1897.
    Decided May 11, 1897.
    
      Assumpsit by John H. Rauch against Mathias E. Seip to recover an alleged overpayment of interest on a mortgage. From a judgment for defendant, plaintiff brings error.
    Affirmed.
    This case originated in justice’s court, where plaintiff had judgment for $4.40, and, on appeal to the circuit court, was tried before the court without a jury, resulting in a judgment in favor of defendant for costs. The excuse given by counsel for appellant for bringing it to this court is that there are many other cases in Monroe county of the same character, and. that this is a test suit. Plaintiff executed a mortgage to the defendant, in which the mortgagor agreed to pay all taxes, “particularly all taxes which shall be assessed under the provisions of Act No. 200, Pub. Acts 1891, upon said premises, including the taxes upon the mortgage interest of said party of the second part in and to said premises by virtue of this mortgage, and that such payments shall not be treated as payments on the interest or principal of the mortgage.” The mortgage also provided that the mortgagor should pay interest “at the rate of 6 per cent, per annum, provided second party pays the taxes, or otherwise, if the first party pays all taxes assessed on this mortgage, to be computed at oi per cent.” By the stipulated facts it appears that the supervisor, in making the assessment of defendant’s property in 1894, asked about these notes. Defendant said that he had them, but that he owed debts to that amount, and asked to have the notes set off, which the supervisor allowed, and no further assessment was made on the said mortgage and notes. .Plaintiff and defendant agreed that plaintiff should pay the interest at 6 per cent., and bring an action in assumpsit to test the question.
    
      Charles A. Golden, for appellant.
    
      Landon & Lockwood, for appellee.
   Grant, J.

(after stating the facts). The mortgage was not assessed to the plaintiff, and he has not paid any tax upon it. The court was therefore right in holding that defendant was entitled to his interest at 6 per cent.

The judgment is affirmed.

The other Justices concurred.  