The Trustees of Jordan v. Otis.

In the case of the People v. Lawson, (17 John. 277,) the court expressed an opinion in accordance with these views. By the twenty-fourth section of the "act to regulate highways," passed March 19, 1813, (2 R. L. 277,) it was enacted that when any roads had been used as public highways for twenty years next preceding the 21st of March, 1797, the same should be deemed public highways, although no record thereof had been made.

The road in question did not appear to have been used as such for twenty years preceding the 21st of March, 1797, but it was used as a highway at least from 1792 to 1813, twentyone years. It was then shut up by the trustees of Newburgh, who had authority for that purpose.

One question was, whether it had been legally discontinued; but the court first discuss the question involved in this case, and express an opinion that a road used as a common highway for less than the statutory time and not recorded, is not a public highway within the meaning of the act relative to highways, so as to render an obstruction of it a nuisance.

As the trustees of the village of Jordan had taken no action to make this road a public highway, before it was shut up by the defendant, it cannot, I think, be regarded as a public highway within the meaning of the statute under which the action is brought. The trustees are not bound to make it a public highway-or to repair it as such—and until it is legally laid out by them and has passed under their legal control, the trustees cannot sue the defendant for obstructing it.

The judgment must be reversed, and a new trial granted; costs to abide the event.

[OSWEGO GENERAL TERM, July 8, 1862. Mullin, Morgan and Bacon, Justices.]

37 60 77h 383

37b 60

52ad 2241

VALENTINE vs. VAN WAGNER and others.

A condition, in a mortgage, that upon default in the payment of interest for twenty days after the time limited for the payment thereof, the principal sum, together with all arrears of interest, shall, at the option of the mortgagee, become and be due and payable immediately, is not in the nature of a forfeiture, to be relieved against by a court of equity, or which a court of equity will not enforce.

It is an agreement which the parties have a right to make, and the extension of credit is lawfully made dependent upon the punctual payment of interest. Upon the failure of the mortgagor to perform the condition, the principal becomes due and payable, by the terms of his contract. And, in the absence of fraud, this, like any other contract, will be enforced by a court of equity.

THIS was a motion for judgment, in an action for the foreclosure of a mortgage.

E. Ketchum, for the plaintiff.

J. G. McAdam, for the defendants.

ALLEN, J. By the terms of the mortgage, upon default in the payment of interest for twenty days after the time limited for the payment thereof, the principal sum, together with all arrears of interest thereon, was, at the option of the plaintiff, to become and be due and payable immediately thereafter. This condition is not in the nature of a forfeiture, to be relieved against by a court of equity, or which a court of equity will not enforce. It is an agreement which the parties had a right to make, and the extension of credit was lawfully made dependent upon the punctual payment of interest. Upon the failure of the mortgagor to perform the condition upon which the credit depended, the principal became due and payable, by the terms of his contract.

In the absence of fraud, this, like any other contract, will be enforced by a court of equity. It is neither oppressive nor unconscionable. (Noyes v. Clark, 7 Paige, 179. Ferris v. Ferris, 28 Barb. 29, and cases cited by Ingraham, J.)

In this case the first semi-annual installment of interest

Valentine v. Van Wagner.

was suffered, by the mere negligence and omission of the mortgagor, to remain in arrear and unpaid from December to May, and the plaintiff then, by his attorney, demanded. payment of the principal and interest, treating it as all due, as he lawfully might. What would have been the effect of the payment and acceptance of the interest as interest, after that, without an agreement further to extend the time of payment of the principal then actually due, it is not necessary to decide. Be that as it may, the evidence fails to show that the plaintiff did accept the proffered payment of interest on the 23d of May, 1860. There was an attempt to force upon him, or to leave with him against his will, a sum of money equal to the interest in arrear. But what a court of equity could not do-relieve the party from the consequences of his contract and deliberate act-he could not do of himself without the consent of the other contracting party, and without the intervention of this court. The claim that the plaintiff accepted the money is, under the circumstances. and the statements of the witnesses in that behalf, improbable. From the statement of the lad, the son of the defendant, it is quite evident that the money was not deliberately paid to and accepted by the plaintiff as and for the interest then in arrear; but a gross sum, a little more than the interest, and a little less than the interest with interest upon it, was mingled with other money that was at the same time paid to the plaintiff when he and his mother fled, leaving it in the plaintiff's hands.

The whole sum has become due by the default of the defendant, the mortgagor, in the payment of interest, and the credit has not since been extended, or the conditions waived by any act of the plaintiff.

There must be a judgment of foreclosure in the usual form, for the whole sum secured to be paid, less one hundred dollars deducted by the plaintiff's consent.

[NEW YORK SPECIAL TERM, February 3, 1862. Allen, Justice.]

HULBERT and others vs. CARVER and others.

Where the plaintiffs deposited money with the defendants, who were bankers, at Chicago, and received from them a certificate stating that the plaintiffs had deposited in their office "$1781.42, Ills. cy., payable to the order of themselves" on the return of the certificate; Held that the fair construction of the terms "Ills. cy.," if applied to the payment of the certificate, was that the same might be paid in bills of banks which at the time of payment were received and passed as ordinary currency in Illinois, in the usual transactions of business; but that payment could not be made in the same bills which were received by the defendants.

Held also, that it was erroneous to hold that the defendants were bound to pay in specie, or in bills which passed at par in Chicago.

A

PPEAL from a judgment rendered at a special term,

after a trial at the circuit.

By the Court, INGRAHAM, P. J. The plaintiffs deposited money with the defendants, who were bankers in Chicago, and received from them a certificate stating that the plaintiffs "have deposited in this office seventeen hundred and eighty-one dollars, Ills. cy., payable to the order of themselves on return of this certificate." The question which arises on this certificate is as to the funds in which it is payable.

We can easily guess what was intended by the letters "Ills. cy.," but that is not the mode which the law adopts to ascertain the meaning of doubtful terms. It was the duty of the party relying on these terms, as affecting the contract of deposit, to show by parol what was intended. That such evidence was admissible was settled in the case of Dana v. Fiedler, (1 E. D. Smith, 463, affirmed 12 N. Y. Rep. 40.) The court excluded evidence offered, to show that these terms applied to the mode of payment. Taking it for granted that these terms mean Illinois currency, and were intended to refer to the mode of payment, the question arises whether such payment may be made in the same bills as were received by the defendants. The question is not free from difficulty. It must be obvious that the certificate does not purport to be

Hulbert v. Carver.

payable in that currency, but states that the defendants have received an amount of dollars in that currency, payable to the order of the depositor. The only ground on which the defendants would be relieved from paying in specie, would be that the defendants acknowledged the receipt of a particular article which they were to return to the plaintiffs. If the certificate can bear this construction, then I do not see why the defendants may not return to the plaintiffs the identical bills, of the same banks, which they have received from them, irrespective of the amount of credit which they had at the time, in Illinois. But if the evidence does not show such to be the meaning of the terms, then the only proper construction which could be given to them, (if it was proven that these terms were used merely to designate the mode of payment,) would be that the same was payable in bills current at the time in Illinois. It could hardly be consistent with a fair interpretation of the contract, that the defendants might receive bills of banks on deposit, at the time worth quite or nearly par, and after using the same, be allowed to repay the amounts in the same kind of money, even though it had become, since the deposit, worthless.

The fair construction of the terms "Ills. cy.," if applied to the payment of this certificate, would be that the same might be paid in bills of banks which, at the time of payment, were received and passed as ordinary currency in the state, in the ordinary transactions of business.

An error seems to have occurred at the trial in holding that the defendants were bound to pay in specie, or in bills which passed at par in Chicago. Such, at any rate, was not the contract. The terms used applied to the state, and not to Chicago. And it was not a part of it that the bills should be equal to par value. If they passed at their nominal amount, in ordinary transactions throughout the state, then a payment made in such bills would, I think, have answered the contract; at any rate, there is not evidence enough for us now to express a more definite opinion on this question.