106 Ala. 549 | Ala. | 1894
— This bill is filed by Olliver against Parker et al. to foreclose a mortgage executed by the latter to the Lombard Investment Company, and covering certain lands situated in the county of Montgomery, to secure a loan of money evidenced by a promisory note, and which mortgage and note were assigned to and are now the property of the complainant. The main question in the case as now presented is whether the bill was prematurely filed ; and that question rises upon the following facts stated in the bill and in certain pleas filed by the respondents : Said note and mortgage were executed October 25,1890, and the note was due and payable on, and the law day of the mortgage fell- upon', November 1, 1895; but the note contains this stipulation : “If the maker of this note and interest notes attached hereto shall allow the taxes or any other public rates or assessments on the property or any part thereof given as security for the aforesaid notes to become delinquent, * * * * then upon the happening of any of said contingencies the whole amount herein secured shall at
1. It is entirely competent for debtor and creditor to agree upon a date or a contingency upon the occurrence of which the debt matures and becomes payable, or alternatively upon a date and a contingency, the date to toll maturity unless the contingency happens before it transpires, and the contingency to mark the time of maturity if it happens before the alternate day fixed in the contract. There is nothing in such stipulations in the nature of a forfeiture or a penalty. When the contingency occurs, it is as if the parties, without reference to any contingency, had agreed upon that day as the time of maturity and payment, and not in any sense upon the idea that the bringing of the debt to maturity at that time is a penalty on the debtor for the happening of the contingency or a forfeiture of any rig-ht of his because it did happen. The debt matures upon that event because he has agreed that it should; and as he pays not one cent morp than the debt with accrued interest, which the creditor would be entitled to however long maturity might have been postponed, it is not conceivable that in paying back the money borrowed with interest for the use of it while he has actually had such use, any penalty or forfeiture can possibly be involved. The character of the contingency cannot be of consequence, any more than it can be important what year or month or day the parties fix upon for payment where maturity is thus tolled : the happening of the contingency but determines the year and month and day of maturity and puts it into the contract as if it had been .originally
2. The stipulation in this note and mortgage is, as we have seen, that they shall become due &c. upon the event of the maker thereof allowing the taxes ‘ ‘to become delinquent.” The bill, speaking as of the date of its filing, May 4, 1894, avers that the makers of said note had allowed the taxes upon said property for the year 1893 to become delinquent, and that the same were then delinquent. We find no plea in this record taking issue upon this averment. By force of the statute the taxes for the year 1893 became delinquent on December 31, 1893. The plea intended to be addressed to this point admits that the taxes in question were not paid till May 14, 1894. It further avers that there was a custom by which taxes for 1893 were payable at any time before June 1, 1894. These taxes were in fact payable from and after October 1, 1893, and at all times- subsequent to that date whether before or after June 1, 1894 until they were paid; but the fact that they were payable after December 31, 1893, and customarily could be
3. The stipulation in question was a continuing one to be taken advantage of by the mortgagee or not as he might elect at any time when the contingency should happen or recur. His right of election upon a delinquency with reference to the taxes of 1893 was not impaired by the facts that there was a like delinquency in respect of the taxes of 189‘J, and that he did not then elect to treat the debt as being brought to maturity thereby. Having the absolute right to declare the note due upon any such delinquency, his failure to exercise it in one instance did not preclude its exercise in a subsequent instance. The first delinquency past without such election, the right was as fully secured to him. by the terms of the contract as to a succeeding delinquency as it had been with reference to the first. And the fact that he had elected not to declaro the debt due upon the first delinquency gave no assurance whatever that a subsequent right of election would be exercised in the same way. And it cannot be said that his election at one time not to declare the maturity of the debt induced the respondents to again allow the taxes to become delinquent, when they knew then as well as in respect of the first delinquency, that notwithstanding his pretermission at that time he had the unqualified right to make the contrary election. If they acted upon a different assumption, it was gratuitous, mere speculation upon which of two courses equally open to him he would adopt; and this action could in no sense be said to have been induced by him.
•Affirmed.