95 Ala. 518 | Ala. | 1891
We can not agree with appellants in the construction of the written agreement of R. E. Bolling, bearing date February 5, 1887. The first employment of the word “indebtedness,” in the agreement, refers unmistakably to the aggregated sum — the past indebtedness of eight thousand dollars, supplemented with the additional twenty-five hundred dollars to be advanced. The language of the writing is, “so as to make their indebtedness to you, including the above twenty-five hundred dollars, in all ten thousand'five hundred dollars.” We think and hold that the proper interpretation of the instrument is, that Bolling’s offer was to permit the entire ten thousand and five hundred dollats to take precedence over his, Bolling’s, mortgage on the lands in Crenshaw county.
The answer sets up in avoidance of the injunction, and of the suit, first, that there is a mistake in the writing, and that it does not truly express the agreement of the parties. This is affirmative matter set up, and, if proved, may be a defense to the claim, in whole or in part. It furnishes no ground ■ for dissolving the injunction. Second, while the answer does not, and probably could not, deny the complainants’ claim, as matter of knowledge, it nevertheless fails to admit its justness as claimed, and so questions it as to render it necessary to take the account, and to ascertain to' what extent, if any, ■ the original debt remains unpaid. The waiver was as to that .debt, and none other. Only to the extent that debt, with its accruing interest, remains unsatisfied,- is Bolling’s mortgage to be postponed. This is a question for proof, and does not arise on the motion to dissolve the injunction On the denials in the answer.
Affirmed.-
