The deceased made an agreement to pay this mortgage within two years. This created a personal obligation, which matured at the expiration of two years without payment. A right of action accrued then.

Had there been no such promise, there was still the obligation to pay the mortgage, and any party in interest might pay it, and be subrogated to the rights of the mortgagee. The mortgage was executed by both George and Jane Clinton, contained an express promise to pay $225 and interest, and was under seal, as also was the separation agreement. Therefore the statute had not run until 10 years had expired. See 3 Comp. Laws, § 9734, and note. The mortgage was dated in June, 1882, payable in three years, the separation agreement in November, 1886. George Clinton died October 15, 1904. The personal obligation under the mortgage became barred in June, 1895, that under the separation contract in November, 1898, unless the running of the statute was arrested, and there is no evidence that it was arrested by any act of the deceased.

It is contended that payments made by Mrs. Clinton had the effect of extending the statutory period, she being a joint promisor in the mortgage, but this is ruled otherwise in the case of Home Life-Ins. Co. v. Elwell, 111 Mich. 689, and cases cited.

It is said in the appellee's brief that the right of action did not accrue until after the payment of the mortgage by claimant. We have already said, and it can hardly be questioned, that the right of action for the breach of this contract accrued at the expiration of two years, when the breach occurred. What other promise was there made in that contract? None except that, if she should choose to pay within the two years, she might have a lien on the land, for the payments, by way of subrogation, which she would have had without such provision if she chose to take an assignment of the mortgage, and perhaps without it. But that does not justify the treatment of such a payment as creating a personal obligation to pay such

sums from other property on which a personal action will lie. If the separation agreement could be construed as a promise to repay her for all payments that she might afterwards make on the mortgage, that contract (being under seal) would be barred by the statute in 1898 at the farthest. Payments made after that time would not only be made on a mortgage, whose personal obligation was barred, under section 9734, but under a contract whose vitality came to an end under the same statute in November 30, 1896, if it be said that a right of action accrued immediately upon such payment and on November 30, 1898, if the expiration of the two years mentioned in the contract was essential to the accruing of such right of action, and the record shows that but $8 was paid within the latter period, and we should still be compelled to reverse the order for the reason that it was error to refuse to direct a verdict for that amount. But we think that the contract did not create a personal liability to reimburse claimant for such payments as already stated, and therefore the entire claim was barred. We are constrained to say, therefore, that the statute is a bar to the personal claim of the claimant.

What her rights may be as to foreclosure of the mortgage, under the doctrine of subrogation, need not be considered, as they are not before us.

The order is reversed, and a new trial is ordered.

MCALVAY, C. J., and MONTGOMERY, OSTRANDER, and MOORE, JJ., concurred.

UNION TRUST CO. v. GRANT.

MORTGAGES-FORECLOSURE-Default-PAYMENT OF TAXES-Con

STRUCTION.

A mortgage stipulated that the mortgagor should pay the taxes within 40 days after they became due and payable, and procure insurance, and that in default thereof the mortgagee might pay such charges and have a lien on the mortgaged premises therefor; it was further agreed that if the mortgagor should make default in the payment of principal, interest, taxes, or insurance premiums, and the same should remain unpaid for 30 days, the mortgagee might declare the whole sum due and payable. Held, that foreclosure proceedings, based on default in the payment of taxes, could not be brought until 30 days after the mortgagee had paid them, and that a bill merely alleging nonpayment by the mortgagor was insufficient.

Appeal from Wayne; Rohnert, J. Submitted April 17, 1907. (Docket No. 30.) Decided May 18, 1907.

Bill by the Union Trust Company against Mary Grant and others to foreclose a mortgage. From a decree for complainant, defendants appeal. Reversed, and remanded with leave to amend bill.

Hobart B. Hoyt (Russel, Campbell, Bulkley & Ledyard, of counsel), for complainant.

Fred A. Baker, for defendants.

MONTGOMERY, J. This is an appeal from a decree of foreclosure. The meritorious question raised is whether, under the averments of the bill of complaint, the mortgagee was entitled to declare the principal sum of the mortgage due at the expiration of 30 days from the time when the taxes upon the mortgaged land became due the tax collector, or whether his right arose 30 days after the

mortgagee should have paid the tax and the same became due and payable to him.

The averments of the bill stating the conditions of the mortgage are here stated at length:

"That in and by said mortgage it was expressly agreed between the parties thereto that the said mortgagors, within 40 days after the same became due and payable, would pay all taxes and assessments which should be levied upon the said lands or upon or on account of said mortgage or the indebtedness secured thereby, or upon the interest or estate in said lands created or represented by said mortgage, or by said indebtedness, whether levied against the said mortgagors, their legal representatives, or assigns, or otherwise, and said mortgagors thereby waived any and all claim or right against said mortgagee, its successors, or assigns to any payment or rebate on or offset against the interest or principal of said mortgage debt by reason of the payment of any of the aforesaid

taxes or assessments.

"That in and by said mortgage it was expressly agreed by and between the parties thereto that the said mortgagors would also keep all buildings erected and to be erected upon said lands insured against loss and damage by fire with insurers and to an amount approved by your orator as a further security to said mortgage debt, and would assign and deliver to your orator all insurance upon said property.

"That in and by said mortgage it was expressly agreed by and between the parties thereto that if said mortgagors should make default in the payment of any of the aforesaid taxes or assessments, or in procuring and maintaining insurance, as therein covenanted, your orator, its successors, or assigns might pay such taxes and effect such insurance, and that the sums so paid should be a further lien on said premises under this mortgage, payable forthwith, with interest at the rate of 7 per cent. per an

num.

"That in and by said mortgage it was expressly agreed by and between the parties thereto that if said mortgagors should make default in the payment of said principal or interest or taxes, or insurance premiums, or any part thereof, when the same became payable, as therein provided, and should the same, or any part thereof, remain unpaid for the period of 30 days, then the aforesaid prin

cipal sum of sixty-eight hundred dollars ($6,800), with all arrearages of interest, taxes, and insurance premiums, should, at the option of your orator, its successors, and assigns, become payable immediately thereafter, although the period above limited for the payment thereof should not then have expired, anything in said mortgage contained to the contrary thereof in anywise notwithstanding."

The averment of default is as follows:

"That default has been made in the terms of said mortgage by reason of the failure of said mortgagors, their personal representatives, heirs or assigns to pay the Detroit city taxes on said mortgaged property for the year 1905, and the Michigan State and Wayne county taxes on said property for the year 1905, within the time limited therefor by the terms of said mortgage, and that said ⚫ taxes still remain a lien against said mortgaged property, although the same long since became due according to the tenor and effect of said indenture of mortgage, and therefore your orator elects to declare the aforesaid principal sum, with all arrearages of interest, taxes, and insurance premiums, immediately payable.

It will be noted that there is no averment that the mortgagee has paid the tax; but, on the contrary, it is averred that they still remain a lien on the land.

We think the proper construction of this mortgage is that contended for by the appellant. The mortgagor covenants to pay the taxes within 40 days after they become due (to the tax collector). If he makes default, the mortgagee may pay the same, and in that case the sum so paid becomes a further lien on the premises and payable forthwith (to the mortgagee) with interest, etc. If the principal, interest, or taxes, or insurance premiums, are not paid when the same become payable as in the mortgage provided, and remain unpaid for 30 days, then the option is given to declare the whole sum due. The expression "when the same become payable" is susceptible of two constructions, the one (as it relates to taxes) when payable to the tax collector, the other when payable to the mortgagee, as in the mortgage provided, to wit,