
    The Union Central Life Insurance Company v. Nicholas Curtis.
    In the condition of a mortgage given to secure the payment of a promissory note, payable on demand, it was provided that, if the mortgagor should pay said note, or cause the same to be paid, the mortgage deed should be void: Held, that demand of payment of the note before suit was not a necessary condition to a right of action on the mortgage.
    Error to the District Court of Butler county.
    The original action was brought by the plaintiff in error against the defendant in error, to foreclose a mortgage given by the defendant, on certaiu real estate therein described, to the Home Mutual Life Insurance Company, to ■secure the payment of a promissory note in the following words and figures:
    "$400. Cincinnati, November 19, 1867.
    “ On demand, I promise to pay to the order of the Home Mutual Life Insurance Company, of Cincinnati, four hundred dollars, at their office, with interest at six per cent, per annum, until paid (said interest to be paid annually), value received. - N. Curtis.”
    This note was indorsed by the Home Mutual Company to the plaintiff. The condition of defeasance contained in the mortgage was as follows :
    “ Provided, nevertheless, that if the said Nicholas Curtis shall pay, or cause to be paid, his certain promissory note, of which the following is a copy—
    “‘55400. Cincinnati, November 19, 1867.
    “On demand, I promise to pay to the order of the Home Mutual Life Insurance Company, of Cincinnati, four hundred dollars, at their office, with' interest at six per cent, per annum, until paid (said interest to be paid annually), value received. (Signed,) N. Curtis.’
    then these presents shall be void.”
    It appeared that no demand of payment of the note was-made before the action was brought on the mortgage, without which it is contended that the action was prematurely commenced. Aside from this, the case involved the same' questions that were considered and decided in The Union Central Life Insurance Co. v. Curtis, ante p. 343, and Ehrman v. Central Company, ante p. 324. The issues were-found in favor of the defendant in error, and judgment rendered accordingly. It is here sought to reverse such-judgment.
    
      Matthews, Ramsey $ Matthews and Israel Williams, for plaintiff in error.
    
      Thomas Millihin and C. D. Robertson, for defendant in erroi
    [Counsel in this case submitted briefs, making substantially the same argument as is reported in the Ehrman case-ante p. 324. — Rep.]
   Boynton, J.

The questions arising upon the issues found' by the district court, in favor of the defendant in error, other than the one involving the right to institute the action to foreclose the mortgage before making demand for payment of the note, were considered in The Union Central Life Ins. Co. v. Curtis, and in Ehrman v. The Central Co., ante, p. 324, 343, and decided adversely to the defendant. The grounds of the judgments there given will not be-restated here. The judgment of the district court must he reversed on the principles declared in those cases, unless the same can be sustained on the ground that the action was prematurely brought. The note to secure which the mortgage was given was payable on demand. The action was on the mortgage, and no demand for payment preceded its commencement. The question, therefore, is, was demand of payment of the note before suit a necessary condition to a right of action upon the mortgage. That an action would lie on the note-without a previous demand is settled in Hill v. Henry, 17 Ohio, 9, and Darling v. Wooster, 9 Ohio St. 517. Such also-is the rule in England. Norton v. Ellam, 2 M. & W. 460. Cases are to be found in which it is held that demand is necessary, but that the action itself is a sufficient demand. That there is something wrong in the reasoning by which such a proposition is supported becomes apparent the moment the-same is stated. No action can be brought upon any claim before due, and if demand of payment is prerequisite to the maturity of the claim, it must of necessity precede the commencement of the action. But' the question is not an open one in this state. The moment the note is delivered to the payee it is due, and in our opinion a right of action,, in equity, to foreclose a mortgage given to secure the payment of a note, so payable, arises at the same time, and upon the same conditions, as the right of action upon the' note, unless the parties have stipulated otherwise. Such a stipulation was contained in the mortgage sought to be foreclosed in the case first above cited. But in the defendant’s mortgage here there was no such stipulation. The conveyance was to be defeated if the note was paid or caused to be paid by the mortgagor. It is true that no-time for its payment was stated in the mortgage, but as the-note was payable at once, we think it fairly to be implied that the parties to the mortgage intended payment of the note at its maturity as a condition on which the conveyance was to be void. A right of action arose on the mortgage to foreclose the equity of redemption the moment the estate conveyed became absolute for non-performance of the condition, which, if performed, would have defeated the mortgagee’s title; and perceiving no reason to require a demand of payment to precede an action upon the mortgage, that does not with equal force apply to an action on the note, we hold that the same was unnecessary.

Judgment reversed and cause remanded for a new trial.  