Headnote
A bond bearing date April 23,1850, conditioned to pay “ the just and full sum of three hundred dollars; that is to say, one hundred and fifty dollars in one year from the date, and the remaining sum of one hundred and fifty dollars ny the 23d day of April 1852, together with the lawful interest,” draws interest upon the principal sum of $300 from the date of the bond, and is not limited to the interest on the last installment of $150.The defendant holds a mortgage upon a piece of land now owned by the plaintiff, and which he purchased subject to such mortgage. There is a bond with the mortgage; both bond and mortgage bear date the 23d day of April 1850. The condition of the bond is as follows, viz: “The condition of this obligation is that if the above bounden Ephraim Damon, his heirs, executors or administrators shall and do well and truly pay, or cause to be paid, unto the above named Phiena Cole, her heirs, executors, administrators or assigns, the just and full sum of three hundred dollars; that is to say, one hundred and fifty dollars in one year from this date, and the remaining sum of one hundred and fifty dollars by the twenty-third day of April 1852, together with the lawful interest; then the obligation to be void, otherwise of force.
The defendant commenced the foreclosure of such mortgage by advertisement, and this action was brought to restrain such foreclosure, and a temporary injunction order was granted, which the defendant now moves to vacate.
The plaintiff paid on the mortgage, at the expiration of one year from its date, one hundred and fifty dollars; and on the eighth day of May 1852, the plaintiff tendered to the defendant’s attorney the sum of one hundred and seventy-two dollars upon said bond and mortgage, claiming that such sum was the full amount due thereon, and which such attorney declined receiving in full.
A. P. Lanning, for Plaintiff.
S. C. Wilson, for Defendant.
The only question it is necessary for me to examine in this case is whether the whole sum mentioned in the condition of the bond (three hundred dollars), draws interest from the date of the bond, or whether interest accrued only on the one hundred and fifty dollars, or second instalment.
The subject to which the term, “ together with the lawful interest” refers, is the main subject of the condition, viz., the three hundred dollars, or the principal sum. Its reference is not to an aliquot part of that sum. The two sums of $150 each are a mere recital and division of the $300 into parcels. The term, “ together with interest,” is a relative term, and refers to the main subject and not to either parcel of it. Hence the whole sum of three hundred dollars draws interest from the date of the bond. The plaintiff did not, therefore, tender the full amount due upon the mortgage. The injunction order must, therefore, be vacated with costs.