77 Ala. 367 | Ala. | 1884
Where a debtor, who owes another several distinct debts, makes a payment to him, without directing the mode of its appropriation, the creditor may apply the money as he pleases. This he may do, without giving the debtor any notice of the act by which the appropriation has been made. But the right must be exercised ante litem motarn, or before any controversy has arisen between the parties as tp the act. It is too late to attempt it after such disputation, and a fortiori at the time of the trial. — 1 Addison on Contr. § 350; Callahan v. Boazman, 21 Ala. 246.
It may be considered as settled, moreover, that where a payment has been rightfully ascribed or appropriated to one of several debts, it requires the consent of both parties to change it. — 1 Greenl. Ev. § 532 a. And’ the act may b.e considered complete, and irrevocable by the creditor alone, when, having
The debtor unquestionably had a right to have the proceeds of sale of the mortgaged property appropriated to the satisfaction of the mortgage debt, without any special direction to this effect. This duty of the creditor is one implied by law, in the absence of the debtor’s consent to have the money credited upon some other debt. — Levystein v. Whitman, 59 Ala. 345 ; Sanders v. Knox, 57 Ala. 80 ; 2 Whart. Contr. §§ 924, 929.
The proceeds of the cotton subject to the mortgage, and shown to have been received by the mortgagee, Long, is about the sum of two hundred and thirty-seven dollars. This must be credited on the mortgage debt. The only other item in controversy is that of eighty-three 44-100 dollars, received from the crop of 1880. The creditor, Long, having elected to appropriate this money to the payment of the mortgage debt, and this fact having been communicated to the debtor, Johnson, upon occasion of the trial in the justice’s court, the former had no power to change it, when .the cause was on trial in the Circuit Court on appeal.
If the mortgage debt was fully paid, the plaintiff, of course, was not entitled to recover.
The rulings of the Circuit Court were opposed to this view, as shown in giving the first and second charges requested by the defendant. The charge numbered three, requested by the plaintiff, was properly refused, because of the last clause. Long was under no duty to appropriate the twenty-four dollars received from the sale of the mare, to the payment of either debt due him by Johnson. If the mortgage debt was paid as the evidence shows, he had no right to sell the mortgaged property, and did not in fact convey any title at the sale. He may have been liable for the proceeds of sale to the purchaser, but not to the mortgagor — the latter not being able to claim both the property and the proceeds of it. He can not claim under the sale, and against it.
Reversed and remanded.