
    *Lawson v. Tilden, Lessor of Goodright.
    Tuesday, March 15, 1808.
    Mortgage — Covenant to Pay Interest Yearly If Lawfully Demanded. — A mortgage was executed on a lot of land, to secure the payment of a sum of money, with Interest, annually. The mortgagor covenanted for the payment of the principal with interest, "yearly and every year, if lawfully demanded;" and in case of failure of payment, that the mortgagee might enter, &c.
    Same — Same—Right to Foreclose before Demand of Interest — A demand of the interest should have preceded the commencement of a suit for the recovery of the land, on an alleged forfeiture for the non-payment of such interest.
    This was an appeal from a judgment of the District Court of Winchester.
    The appellee brought an ejectment against the appellant for part of a lot of ground in the town of Martinsburgh, to which he claimed a right of entry, in consequence of the non-payment of the annual interest of a sum of money, to secure which, as well as the principal, the lot had been mortgaged to him by the appellant.
    The declaration in ejectment was filed at the September term, 1801. At the trial of the cause, in 1802, the plaintiff (now ap-pellee) produced in evidence a mortgage bearing date the 2d of July, 1792, by which the defendant (now appellant) conveyed the lot in question to secure the payment of three hundred pounds, Pennsylvania currency, on or before the 1st day of January, 1802, with interest from the 1st day of January, 1792, “and that interest to be paid yearly and every year.” Then follows a covenant on the part of the mortgagor, that he will pay the principal at the stipulated time, together with the legal interest yearly and every year, if lawfully demanded ; which words, ‘ ‘if lawfully demanded, ” interlined, were also covenants for the entry of the mortgagee on failure of payment; and the quiet enjoyment of the mortgagor, till such failure. Whereupon the defendant’s counsel required of the plaintiff to shew further in evidence, that a demand had been made of the defendant for the interest mentioned in the said deed; but the plaintiff not being able to prove such a demand, the plaintiff’s counsel moved the Court to instruct the Jury that such a demand should have preceded the commencement of the suit by the lessor of the plaintiff; and, therefore, that the law was for the defendant. But the Court instructed the Jury that such a demand was not necessary. To this opinion the defendant’s counsel excepted; and there having been a verdict and judgment for the plaintiff, the defendant appealed to this Court.
    *Williams, for the appellant.
    In this case the mortgagee had provided his own remedy; that if the interest was not paid on demand, he should have a right of entry. The case comes completely within the reason of the rule of law where a right of re-entry is given on the non-payment of rent. If a demand be not proved, there- is no question but that the parly cannot recover.
    Hay, for the appellee.
    There is a distinction between a debt bearing interest, and rent. In the former case, it is the duty of the debtor to seek his creditor if within the four seas, as it is expressed by the English authorities: and make payment. This is expressly stated by Iyittleton, sect. 340, in reference to this very question between mortgagor and mortgagee. This being laid down as a general position applicable to debtors and creditors, the only inquiry is, whether the words, “if lawfully demanded,” make any difference. He contended that they did not. This was a covenant for the payment of a certain sum of money, with interest annually. Under the general rule just laid down, the debtor was bound to seek his creditor, and pay him the money.
    Though he had not been able to find any case directly in point, yet, from the reasons already given, as well as from a reference to good pleading, which is said by Lord Coke to be the best evidence of the law, the appellee was clearly entitled to recover. In an action of debt upon a bond, it is the constant practice to declare for a debt to be paid when lawfully demanded. Now it is well known that the plaintiff is not bound to prove a demand. So in an action upon a note, payable on demand, it is not necessary to prove a demand; the bringing of the suit is sufficient. 
    
    Page, in reply, said, that if the words “if lawfully demanded,” had not been inserted in the mortgage, he should still contend that a demand was necessary.  With respect to the doctrine of re-entry on the non-payment of rent, it is expressly laid down in the authorities *just cited, that a demand is necessary ; and there is a strong analogy between this case, and that of rent, upon the failure to pay which, the estate of the tenant is defeated. It will be observed, on inspecting the deed, that these words, “if lawfully demanded,” were interlined, and may be regarded as the final agreement of the parties. The effect of this suit was to divest the mortgagor of the land, which brings the case fully within the reason of the law which always requires a demand where there is a clause of re-entry on the non-payment of rent. The case of a simple debt is totally unlike the present.
    
      
       1 Esp. N. P. 131.
    
    
      
       6 Bac. Abr. Gwil. ed. 25, 26; Co. Lit. 201 b.
    
   Thursday, March 17. The Judges delivered their opinions.

JUDGE TUCKER.

The sole question in this cause is, whether if a deed of mortgage contain a covenant to pay interest annually, if lawfully demanded; and that in case of failure, the mortgagee may at all times, after default shall be made in the performance of the proviso or condition, of the mortgage, enter into the premises; and further, that until default, the mortgagor shall hold the premises; it is incumbent on the mortgagee to prove a demand of interest in arrear, before he can maintain an ejectment?

There can be no doubt, that the condition to pay interest annually, imposes upon the debtor in case of a mortgage, the duty and necessity of finding out his creditor, and paying or tendering him the money on the day it becomes due, if he would avoid the forfeiture of his estate, unless there be some further stipulation or agreement, between the parties, whereby this general rule of law may be waived. As if the agreement be to pay the interest at a certain place, and at a certain hour; in that case the mortgagor is not bound to go to any other place, nor to stay beyond the hour agreed upon. Because here the mortgagee, or creditor has waived the -privilege of being sought wherever he may be within the state, So may he waive by his own agreement, the privilege of being sought at any particular *time or place, by an agreement that no forfeiture shall be incurred, until a demand be made. In this case, if he would take an advantage of the condition to enter into the lands in default of payment of the interest, it is incumbent on him to prove a demand of it. I will not say whether the demand in such a case ought to De made upon the mortgaged premises, since the case does not require that question to be decided. But I am clearly of opinion, upon this bill of exceptions that the plaintiff ought to have proved a demand, or at least that he had sought the defendant upon the mortgaged premises, and could not find him to demand the money of him personally. I am, therefore, of opinion, that the judg-meat be reversed, and a new trial awarded; with directions to the Court to instruct the Jury accordingly.

JUDGE ROANE.

The principal money due by the mortgage, in this case, was payable on or before the first day of January, 1802, with interest yearly and every year from the first of January, 1792. The lease declared upon is of .the first of January, 1801, and the entry made in pursuance thereof is stated to have been on the same day.

At the time of the lease and entry, therefore, the principal money was not due, and the forfeiture which is set up, is not predicated upon its non-payment with the interest: it is predicated upon the non-payment of some of the annual interest reserved by the deed.

Admitting the general law to be as the appellee’s counsel has stated it, the maxim modus et conventio vincunt legem, overrules it as applying to this case. It was covenanted that the interest should be paid yearly and every j'ear until the principal became due: but inasmuch as this might be too rigorous and too troublesome in relation to the debtor, and no object with the creditor, it was further agreed, that the non-payment of the interest annually should be no cause of forfeiture, and give no right of entry, unless such interest was “lawfully demanded.” This *construction, which is sufficiently apparent on the face of the deed, is confirmed by the consideration, that the words “if lawfully demanded,” were interlined after the agreement had been originally written, .as if to exclude all doubt upon the subject.

I am therefore of opinion, that the instruction of the District Court was erroneous, and that the judgment should be reversed.

JUDGE DEEMING.

This suit was brought for a forfeiture incurred by the non-payment of interest before the principal debt, which the mortgage was intended to secure, became due, so that the forfeiture respected the interest only; and there being an express stipulation or proviso, that the annual interest should be lawfully demanded, before a forfeiture could be incurred, and no such demand having been proved at the trial, though required by the defendant, the Court erred in giving judgment for the plaintiff; I therefore concur in opinion, that the judgment be reversed.

The following was entered as the judgment of the Court: “That it was incumbent on the appellee to prove a demand of the appellant for payment of the interest in the bill of exceptions mentioned prior to the commencement of his suit, and that the District Court erred in instructing the Jury, that proof of such demand was not necessary.”

Judgment of the District Court reversed, with instructions, &c. 
      
       Litl. sect. 340, 341.
     