Burbridge

Action to foreclose a mortgage on real property to secure the payment of a promissory note, dated January 29, 1889, for twelve thousand dollars, made by defendant, payable to plaintiff, or order, five years after date, with interest at the rate of ten per cent per annum, payable annually, and if not so paid annually, then the whole principal and interest to become immediately due and payable at the option of the holder of the note.

The defendant failed to pay interest for the first year, and about six months after it became due (September 1,1890) this action to foreclose for both principal and interest was commenced.

The answer of the defendant denied that the principal or any interest thereon had ever become due on said note or mortgage, by reason of facts affirmatively alleged in the answer as follows:—.

The court found all these affirmative allegations in the answer to be true; and, as a conclusion of law therefrom, found: “ That the written agreement set forth in defendant’s answer was and is in contravention of section 5 of article XIII. of the constitution of this state, and renders null and void all the provisions of the said note and mortgage as to the payment of any…