56 Ala. 211 | Ala. | 1876
The condition of the mortgage in the present case is in the following language: “ Upon condition, however, that if I pay, or cause to be paid, the said foregoing described promissory notes, with the interest thereon, as they respectively fall due, then this instrument is void and of no effect whatever, either in law or equity; but, if I fail to pay the said described promissory notes, as they fall due, with the interest thereon, then the said Evan Presley, or his legal representative, is hereby authorized and empowered to take possession of the said described lands and tenements, and, after giving twenty days’ notice of the time, place, and terms of sale, in some newspaper published in said county, sell the same to the highest bidder for cash,” &c. The notes described in the mortgage were four in number, due severally January 1st, 1873-4-5-6. The second of said notes remain
The bill takes the position that the sale, January 31,1874, was premature, and conferred no title; and that when Jones reconveyed to Presley, he simply restored him to his original status as mortgagee. Under this view it is contended, that the power of sale in the mortgage could not be executed, until all the notes were past due; and taking this position, the bill charges, that the mortgagor was committing waste, and that he was insolvent; and the bill prayed and obtained the appointment of a receiver, and prayed for the foreclosure of the mortgage, and for general relief.
We thiuk the language of this mortgage forces us to hold, that the mortgagor was in default whenever he permitted either of the installments to remain unpaid, after its maturity. His promise was to pay in installments, and he agreed, if he failed “ to pay the said described promissory notes as they fall due, with the interest thereon,” then the said Presley was authorized to take possession, advertise, and sell. Whenever he failed to pay one of these notes, at its maturity, he committed a breach of the contract, and put it out of his power “ to pay the said described promissory notes as they fall due.” The rule would have been different, if the power to take possession and sell had been made to depend on his failure to pay all of the notes. But the failure to pay one of the notes does not make the others due. The present mortgage contains no power to sell from time to time, as the installments mature, or to make more than one sale. Nor does it appear whether the lands are susceptible of division, so as to sell them in different lots, without impairment of the marketable quality of the premises. In such cases, it becomes our duty to inquire, whether, under a mortgage like the present one, the mortgagor can sell the whole premises ; and if so, how shall the sale be conducted.
The case of Cox v. Wheeler, 7 Paige, 248, arose on a mortgage to secure a debt payable in installments, with power of sale on default, but without any stipulation that, on default as to one installment, all should become due, and without au
If it be contended that the foreclosure in the case of Cox v. Wheeler, supra, was under a statute of New York, the answer is, that the statute made no provision, and exerted no influence in the decision of the question we have been discussing. The right to sell the whole mortgaged property, and to retain for after-maturing installments, was put on general principles, uninfluenced by the statute. — See 3 Rev. Stat. 5th ed., 859 to 862.
It follows from what we have said above, that when default was made in the non-payment of one of the installments, the mortgagee had power to sell the entire premises; and if any surplus of proceeds was left, after satisfying the installments then due, the mortgagee had the right to retain, of such surplus, a sum sufficient to meet and liquidate the after-maturing installments.
Having foreclosed his mortgage, by sale, in 1874, Presley’s bill, as a bill to foreclose, is without equity.— Williams v. Hatch, 38 Ala. 338. So far as the averments of the present bill disclose, and so far as the proof shows the facts, Presley, when he filed his bill, had a legal title to the lands, and he could have maintained an action at law for their recovery. If he had brought such action, on his averment that McLean was and is insolvent, we will not say he could not, in some cases, have had a receiver appointed, on a bill properly framed, in aid of such ejectment suit. — See High on Receivers, §§11,12 etseq.; but see also § 555. "We need not, and do not decide this question in this case. The bill alleges, that Jones puichased at the sale for Presley, the mortgagee and seller, and that, pursuant to such previous understanding, he re-conveved to Presley. If this be so, McLean, on
The complainant, not being in possession, the suit can not be maintained as a mere bill to remove a cloud from the title.
The decree of the chancellor, in the appointment of the receiver, and in the foreclosure of the mortgage, is reversed, and the cause remanded.