specialty,' shall be brought 'within six years next after the cause of such action or suit, and not after.' This expression, 'cause of action,' has been repeatedly the subject of decision, and it has been held, particularly in Hemp v. Garland, decided in 1843, that the cause of action arises at the time when the debt could first have been recovered by action. The right to bring an action may arise on various events, but it has always been held that the statute runs from the earliest time at which an action could be brought." The reason for allowing the debtor to take advantage of the stipulation is well stated by the supreme court of Texas in the case of Harrison Mach. Works v. Reigor, 64 Tex. 89, 90, 91, as follows: "The purpose of statutes of limitation is 'to compel the settlement of claims within a reasonable period after their origin, and while the evidence upon which their enforcement or resistance rests is yet fresh in the minds of the parties or their witnesses.' Wood, Limitation of Actions, § 5. If the holder of a note may, at his option, treat the claim as due at a later date than the maker has agreed that it shall mature, and thus pre

sist upon it, and to receive whatever advan- a provision that, if default is made in tages it might confer upon him. Mr. Justice punctual payment of interest, the principal Brewer, speaking for the court, said: "This shall be recoverable at once. Now, the clause is inserted in mortgages usually for statute of limitations (21 Jac. I. chap. 16) the benefit of the mortgagee; but, being a enacts that such actions as therein menvalid stipulation, the mortgagor has equal tioned, including 'all actions of debt groundright to insist upon it, and receive whatevered upon any lending or contract without advantage he can from its enforcement. When the payor, at the expiration of six months, failed to pay the note then due, by the terms of the contract all three notes became due. The statute of limitations began to run on all, and a subsequent purchaser purchased after maturity." First Nat. Bank v. Peck, 8 Kan, 663. The same rule was announced in England at least as early as 1843. A defendant gave a warrant of attorney to secure a debt payable by instalments; the plaintiff having the right in case of any default to have judgment and execution for the whole, as if all the periods for payment had expired. In an action of assumpsit it was held that the defendant might show, under a plea of the statute of limitations, that the first default was made more than six years before action, and that this was a complete defense, not only as to instalments due more than six years before, but also as to those due within that period. Lord Denman, Ch. J., said: "We are of opinion that the defendant is right, and that the cause of action accrued upon the first default for all that then remained owing of the whole debt. . . In this case there was a default more than six years ago, and upon that the plain-scribe a different date at which it shall be tiff might, if he pleased, have signed judgment, and issued execution for all that remained due, or he might have maintained his action. If he chose to wait till all the instalments became due, no doubt he might do so; but that which was optional on the part of the plaintiff would not affect the right of the defendant, who might well consider the action as accruing from the time that the plaintiff had a right to maintain it. The statute of limitations runs from the time the plaintiff might have brought his action, unless he was subject to any of the disabilities specified in the statute; and, as the plaintiff might have brought his action upon the first default, if he did not choose to enter up judgment we think that the defendant is entitled to the verdict upon the plea of the statute of limitations." Hemp v. Garland, 4 Q. B. 519, 523, 524. This case was expressly approved in 1891 by the court of appeal, on appeal from the Queen's bench division, in the case of Reeves v. Butcher [1891] 2 Q. B. 509. Lindley, L. J., said: "I am of opinion that we cannot differ from the judgment below without altering the law. The agreement is one reasonably easy to be understood. It provides for a loan for five years, subject to

barred, the evidence for its enforcement may be preserved, whilst that for its resistance may be destroyed, and thus the purpose of the statute be wholly defeated. . . . Here no option was left to the creditor. He was forced to treat the debt as due. It is true he was not obliged to bring suit upon it upon default in payment of the first note. Neither is any creditor compelled to sue upon a claim so soon as it becomes due. But the statute was put in motion without consulting his wishes, by the very terms of the contract, which neither party had any right to change without the consent of the other." So in Noell v. Gaines, 68 Mo. 649, 656, it is said: "It cannot, with any show of reason, be urged that the notes could, under the terms of the contract, fall due for one purpose and not for another. If they fell due when the contingency happened, and because it happened, and because the parties, upon valid consideration, had thus contracted, it must needs follow that the face of the notes, under the circumstances mentioned, ceased to furnish any guide as to their maturity." And the benefit to be derived by sureties from a contract providing that nonpayment of a part of the debt shall mature the whole is forcefully stated by the Kentucky court of

But

appeals as follows: "It is easy to conceive | all accrued costs, would not, after suit had that a surety might require such a clause been commenced, discharge the default and as a condition for his own protection. He reinstate the contract as to notes otherwise might be unwilling to bind himself for five not due for a long period of time. Stanclift years unconditionally, whereby he might be v. Norton, 11 Kan. 218. The legislature has compelled to pay at the end of that time not seen fit to interfere, and the rule thus both the principal and interest, and might early announced is now definitely estabvery prudently say: 'Insert a clause which | lished as a part of the law of this state. Darrequires the interest to be paid quarterly, row v. Scullin, 19 Kan. 59; Meyer v. Graeand which provides that, if not so paid, the ber, 19 Kan. 165; Ellwood v. Wolcott, 32 debt is to become due, so that, if not paid, Kan. 526, 4 Pac. 1056; Lewis v. Lewis, 58 I will have the right to pay it or secure Kan. 564, 50 Pac. 454; Douthitt v. Farrell, myself." Ryan v. Caldwell, 106 Ky. 543, 60 Kan. 195, 56 Pac. 9; Kennedy v. Gibson, 50 S. W. 966, 967. The reasoning of these 68 Kan. 612, 75 Pac. 1044. At a date earcases applies with peculiar force to the sit- lier than that of the decision in First Nat. uation of one who has purchased subject Bank v. Peck this court held: "As a gento a mortgage which he has not assumed, eral rule, when a statute begins to run, it and especially so if the mortgagors have continues to run until the demand is barred. left the state, and he may be deprived of This principle is laid down with great unitheir aid in making proper defenses to a formity in all the authorities, and may be belated claim. When on the United States considered as settled. Undoubtedly the circuit bench, Mr. Justice Brewer said: legislature may prescribe differently, and in "Now, here, according to the averments of this state several exceptions are made, but this petition, this mortgage and this deed none such as is claimed in this case." Green of trust were executed at the same time, v. Goble, 7 Kan. 297, 301. and to secure these notes; they were parts and parcels of one transaction, and are to be construed as one instrument; and if there were but one instrument, and that containing a promise to pay money at three separate times, with a proviso that, upon a failure to pay the first sum at the time | named, all should become due, I cannot see how, logically, we can escape the conclusion that the parties have made an absolute, unconditional stipulation, operative under all circumstances and for all purposes. I had occasion when I was on the supreme bench of my own state to consider this matter in two or three cases, and that was the conclusion I then came to, and it is unchanged. I am aware that Judge Hough, in his dissenting opinion, suggests certain contingencies in which the application of this rule, where there are several negotiable promissory notes secured by mortgages or deeds of trust, might work out some embarrassments; but still I do not think that the possibility of such embarrassments can avoid the clear force of the language the parties have used. I do not see why they cannot make such a contract, and if they made it, and its language is clear, I do not see why the courts should not give force and effect to it." Wheeler & W. Mfg. Co. v. Smalley v. Ranken refers, in turn, to Howard, 28 Fed. 741. Although the courts Watts v. Creighton, 85 Iowa, 154, 52 N. W. of some of the states and some of the Fed- 12, and Watts v. Creighton discusses and exeral courts have taken a different view, the pressly rejects the doctrine of First Nat. doctrine propounded in First Nat. Bank v. Bank v. Peck. The argument in the SmalPeck has been steadily adhered to by this ley Case is as follows: "What did the parcourt. It has been carried to the extent of ties stipulate that the taxes should be paid holding that a tender of delinquent taxes, by defendant for? To protect the plaintiff whose nonpayment constituted the sole from the loss or impairment of his security. breach of the contract, and the payment of 'At the filing of the amendment every right

By applying the rules recognized in these cases to the facts of the case under consideration, it becomes plain that the demurrer to the reply was properly sustained. the defendant claims that the court should have been guided by the case of Douthitt v. Farrell, 60 Kan. 195, 56 Pac. 9, the syllabus of which reads as follows: "Where a promissory note was given, by the terms of which the principal became due in five years from date, with interest payable semiannually; and a real-estate mortgage securing it was given, which provided that upon default in payment of any of the interest when due, and the taxes on the mortgaged premises when due, the whole indebtedness should mature; and both such defaults occurred; and the statute of limitations thereupon commenced to run against the indebtedness; and the delinquent taxes were thereafter paid by the mortgage debtor,-held, that the running of the statute in his favor was ended by his voluntary correction of the one default; and, although more than five years elapsed from the occurrence of the two defaults mentioned, the cause of action on the note and mortgage was not barred." This decision was based upon the case of Smalley v. Ranken, 85 Iowa, 612, 52 N. W. 507.

of the plaintiff in this respect was fully pro- | viding for penalties or forfeitures. Swear tected. The object of the condition of the ingen v. Lahner, 93 Iowa, 147, 26 L. R. A. mortgage was to enable the plaintiff to treat 765, 57 Am. St. Rep. 261, 61 N. W. 431. the debt as due, and save himself from loss But a more fundamental consideration is because of the default. After the payment that the parties made the contract, and the of the taxes, all such liability for loss was courts cannot make another to take its at an end. His situation was exactly as if place. Its language excludes the idea that there had been no default, as far as the con- the creditor may or may not "treat the debt ditions for forfeiture were concerned. To as due." It becomes due in fact. If an elecjustify a forfeiture under such circum-tion were all that the parties intended, stances would work an injustice that the court ought not to permit." This reasoning proceeds upon premises wholly incompatible with those employed in the decisions of this court already quoted and cited. Stipula tions for the acceleration of the maturity of debts do not provide penalties or forfeitures. "It is therefore settled by the overwhelming weight of authority that if a certain sum is due, and secured by a bond, or bond and mortgage, or other form of obligation, and is made payable at some future day specified, with interest thereon made payable during the interval at fixed times, annually or semiannually or monthly, and a further stipulation provides that, in case default should occur in the prompt payment of any such portion of interest at the time agreed upon, then the entire principal sum of the debt should at once become payable, and payment thereof could be enforced by the creditor, such a stipulation is not in the nature of a penalty, but will be sustained in equity as well as at law. In exactly the same manner, if a certain sum is due, and is secured by any form of instrument, and is made payable in specified instalments, with interest, at fixed, successive days in the future, and a further stipulation provides that, in case of a default in the prompt payment of any such instalment in whole or in part at the time prescribed therefor, then the whole principal sum of the debt should at once become payable, and payment thereof could be enforced by the creditor, such stipulation has nothing in common with a penalty, and is as valid and operative in equity as at the law." 1 Pom. Eq. Jur. 2d ed. § 439. "Provisions such as that under consideration are not in the nature of penalties; nor have they anything in common with forfeitures, but are to be regarded as nothing more than agreements between the parties fixing the time and the conditions upon which the whole debt may become due. Such an agreement may be as advantageous to the payor as to the payee. Buchanan v. Berkshire L. Ins. Co. 96 Ind. 510; Malcolm v. Allen, 49 N. Y. 448; 1 Pom. Eq. Jur. § 439; 2 Jones, Mortg. § 1186." Moore v. Sar-nally fixed for the maturity of the note." gent, 112 Ind. 484, 485, 14 N. E. 466. In- Such being the established position of this deed, the supreme court of Iowa itself, in a court the Smalley Case must be eliminated later case, has expressly held that such as a support for the conclusion reached in stipulations are not to be regarded as pro- the Douthitt Case. In deciding the Douthitt

words appropriate to that purpose should have been used. "It is not necessary to assume that the parties to such a contract intended to provide for none but wrongful refusals to pay instalments. It might happen that the debtor, upon good grounds, would afterwards deny his liability upon the contract, and therefore refuse to pay instalments, in which case the provision would serve him a useful purpose, in bringing the question at issue to a prompt test, and not leave it entirely with the creditor to delay until, perhaps, evidence of the defense had been lost. The question at last is one of construction of the language used, and that which makes it mean just what it says is not without reason or good authority to support it. Where the purpose is only to give the option to the creditor, language expressive of it may be easily inserted." San Antonio Real Estate Bldg. & L. Asso. v. Stewart, 94 Tex. 441, 86 Am. St. Rep. 864, 868, 61 S. W. 386. This distinction was recognized, and, indeed, controlled the decision, in the very recent case of Kennedy v. Gibson, 68 Kan. 612, 75 Pac. 1044. The opinion reads: "The note provided that a default should mature the entire debt, at the option of the holder, while the provision in the mortgage was that a default made the whole debt due, regardless of an election by the holder. Which of these provisions should control? In the absence of an option clause in the note, the stipulation in the mortgage would have operated to mature the whole debt upon a default, and the mortgagors could have taken advantage of the stipulation. First Nat. Bank v. Peck, 8 Kan. 660. The stipulation in the note as to default, however, conflicts with that of the mortgage, and, of necessity, the former controls. The note contains the obligations of the mortgagors, and the mortgage, concurrently executed, is an incident to and security for the note. The stipulation in the note must therefore prevail, and, unless the holder exercised the option and elected to declare the whole debt due, the statute would not run earlier than the time origi

agreed upon. The mortgagor had then the right to pay or tender the whole debt, and by that means suspend the accumulation of interest. The acceptance of a part by the mortgagee did not defeat the right of the mortgagor to pay or tender the balance at once, nor did it, without a new agreement, extend the time or prevent the former from enforcing payment of what remained unpaid. . . . Under a provision which gives the creditor the exclusive right to elect, within a time fixed, whether or not he will treat the whole debt as due in case the debtor makes default in paying interest, it may well be that the unconditional acceptance of interest by the creditor, after the expiration of the time, without notice of the election, would waive the default. 2 Jones, Mortg. § 1186. Or if the default was

Case the court in effect declared reciprocal | Moore v. Sargent, 112 Ind. 484, 485, 14 N. estoppels against the parties. The debtor E. 466, it is said: "The provision in the lost the right to plead that the statute was mortgage for accelerating the time when the running on account of his default, and the whole debt should become due and collecticreditor lost the right to sue on account of ble did not make the maturity of the debt the same default. The wound was healed evidenced by the second note depend upon without a scar. The condition in the mort- the election of the mortgagee. The second gage that the creditor could, under certain note became absolutely due upon failure to circumstances, insist upon payment of the pay the first note at maturity. According note before maturity according to its terms, to the terms of the contract, upon the hapwas restored to the status of an unbroken pening of that event the whole debt became covenant for the future protection of the in- as effectually and absolutely due as if furdebtedness secured, and the indebtedness it-ther credit had not been, in any contingency, self was restored to the status of an unmatured claim. The opinion reads: "We have no doubt but that the voluntary payment of the taxes by the debtor was a waiver by him of the conditions under which the statute of limitations was running in his favor, and was a restoration by him of the plaintiff to the status of a holder of an unmatured indebtedness." Manifestly no such rehabilitation of rights could be accomplished in this case. The last note had matured by its own terms six months before the taxes were paid. The plaintiff could not be reinvested with the rights of a holder of an unmatured indebtedness, and the mutual modification of the legal relations of the parties adverted to in the Douthitt Case was impossible. True, the term "voluntary waiver" is used in that decision, but, as already observed, the waiver was of such a character that it neces-induced by the fraudulent or inequitable sarily worked a change in the rights of the opposite party. That the conduct of a single party to the contract may have such a far-reaching effect, unless the other party has been influenced in some manner by it, is not conceded by those courts which enforce the rule of peremptory maturity adopted in this state. Thus, in the case of San Antonio Real Estate Bldg. & L. Asso. v. Stewart, 94 Tex. 441, 86 Am. St. Rep. 864, 668, 61 S. W. 386, it is said: "It is not in the power of the creditor, by his acts alone, to change the rights of the parties resulting from the maturity of the debt. But both parties, by their joint action, may so alter such rights that the creditor would no longer have the right to demand, nor the debtor to pay, the entire indebtedness.

conduct of the creditor, or by any agreement or promise upon which the debtor might rely which operated to mislead or throw the debtor off his guard, a court of equity would interfere to stay proceedings, or the action might be abated upon the facts being properly pleaded.”

But under either theory the judgment of the district court in this case was correct, because the condition in the mortgage now in controversy had spent its force when the taxes were paid. No acceleration of the maturity of the notes secured could occur by virtue of it. Failure to comply with it could not start the running of the statute, and a payment of taxes could not stop the statute from running. No rights could be gained or lost on account of the stipulation. On February 18, 1896, a cause of action accrued in plaintiff's favor, and the statute of limitations then commenced to run against it. From February 18, 1896, until the notes matured by their terms, the plaintiff had an indisputable right to bring suit upon them, and during ail that time the statute of limitations continued to run. After the notes matured by their terms, the cause of action continued to exist, unimpaired, and the statute continued to run. The payment

While neither party, by his separate action or nonaction, could impair the rights of the other, each could waive his own rights as they accrued from the default in payment of an instalment so as to estop him from relying upon such default. To accomplish this, it would only be necessary that each should so act as to justify the other in believing, and acting upon the belief, that the effect of the failure to pay an instalment was to be disregarded, and that the contract should stand as if there had of taxes on August 21, 1899, could not prebeen no default." Likewise, in the case of vent suit on the notes, and hence could not