41 So. 144 | Ala. | 1906
The mortgage in the case at bar is unlike the one in the case of Keith v. McLaughlin, 105 Ala. 342, 16 South. 886, as the mortgage in that case provided that there should not be a foreclosure and forfeiture until October 1st, 1882, the date of maturity of the last payment. The mortgage in the case at bar provides for a sale in case the mortgagor failed to pay the secured indebtedness or any part thereof when due, thus authorizing a sale upon default of any one of the notes, which said default would operate as a forfeiture pro• tan-to.- — Fulgham v. Morris, 75 Ala. 245; McLean v. Pressly, 56 Ala. 211.
The promise in the mortgage was to pay in installments and when the mortgagor failed to pay either pf the netes at maturity, he committed a breach of the contract and the mortgagee was authorized to take possession and sell. But the failure to pay one of the notes did not make the other fall due in the absence of a provision in the contract to that effect. The mortgage contains no power to sell from time to time, as the indebtedness may mature, or to make more than one sale, and, as the first one that was made was authorized, the second one was invalid. It has been held, by this court that if the sale is made upon default of one instrument the mortgagee may retain enough of the proceeds to satisfy the others but he cannot make more than one sale of the property unless specially authorized to do so. — McLean v. Pressly, supra. The trial court, therefore, erred in allowing the defendant to prove the second sale.
The plaintiff having complied with the statute, §§' 3507 and 3510 of the code of 1896, was authorized under § 3513 of the code of 1896 to bring this action. — First National Bank of Anniston v. Elliott, 125 Ala. 646, 27 South. 47, L. R. A. 742, 82 Am. St. Rep. 268.
The trial court erred in giving the general affirmative
Reversed and remanded.
