
    No. 165
    WILFORD H. PICKING v. EQUITY REALTY CO.
    Ohio Court of Appeals, Cuyahoga County
    No. 4106.
    Jan. 22, 1923
    MORTGAGE — (1) Installments — Exercise of privilege of maturing all upon default — (2) Tender unavailable — (3) Inability to locate mortgagee, ground for- relief.
    Attorneys — W. C. McCullough, Esq.-, for plaintiff; Ulmer & Bernstein, for defendant.
   MAUCK, J.

Epitomized Opinion

The defendant had given to the plaintiff eleven notes, which were secured by mortgage. The notes and the mortgage had the provision in case of default in payment of interest of this note, or any other note within fifteen days after it became due, or failure to pay the principal when due, all of the other notes and the principal sum covered by the mortgage should become due. A note fell due July 1, 1921, and was not paid; plaintiff commenced an action to foreclosure. The notes were made payable at a certain'room in a certain building, and which building had been torn down and remodeled, and no such place was in existence. On the trial of the case there was no evidence that a tender J*ad been made, or that reasonable endeavor had been made to find the plaintiff, until after the defendant had been notified that all of said principal sum had become due.

Held:

1. That the court was without authority to relieve the defendant.

2. Plaintiff having exercised his option prior to the tender made by the debtor, such tender was unavailable.

3. That evidence of reasonable endeavor to locate the plaintiff in order to make payment, and that the defendant was able to pay, was prevented from paying, or tendering, because of his inability to find the mortgagee, would constitute grounds for relief.  