165 So. 87 | Ala. | 1935
Demurrer to so much of the bill that seeks a deficiency judgment was sustained upon the theory the debt was barred by the statute of limitations (Code 1923, § 8944), not on account of the maturity date of the notes, but by virtue of the acceleration clause in the mortgage.
Upon this question there is sharp conflict in the general current of authorities. Numerous cases are cited in the note to Perkins v. Swain, 34 A.L.R. 894, with appropriate comments on the theories supporting the divergent views. See, also, 19 R.C.L. p. 499; 8 Corpus Juris, p. 138.
Any consideration here of the authorities of other jurisdictions would serve no useful purpose, as we think that in principle, at least, the matter has been determined by this court adversely to demurrant's contention.
We have here adopted the view that such acceleration clause is for the benefit of the mortgagee, and is not intended to grant to the mortgagor a right, by his own default, to change his unconditional promise to pay at a given date as disclosed by his notes. In 2 Jones on Mortgages (8th Ed.) § 1515, holding to this view, is cited Cox v. Kille,
But still more directly in point is the case of Gorr Lumber Co. v. McMillan *374
The cited case of Walter v. Kilpatrick,
The case of Watson v. Clayton,
In noting the authorities, a clerical error inadvertently intervened, wherein was cited United States Fidelity Guaranty Co. v. Yeilding Bros. Co. Department Stores,
These authorities (with particular emphasis upon Gorr Lumber Co. v. McMillan, supra, which dealt with a limitation statute) should suffice to demonstrate that this court is committed to the view that the acceleration clause was inserted for the benefit of the mortgagee, and enforceable at his option; and that the debtor cannot by his default destroy such option. Nor is there anything in the holding of the court in Chambers v. Marks,
It therefore appears that no such question as here presented was there involved or considered.
The case of Derzis v. Cox,
But we forego further discussion, as we think the question is foreclosed by the previous decisions of this court as herein noted, and contrary to defendant's insistence.
Due consideration has been given the forceful argument of counsel for defendant in presenting the opposing view. Much has been written and conflicting views entertained. But we are here committed to the opinion, as herein expressed, and have no inclination to depart therefrom.
Defendant has placed much reliance upon Chambers v. Marks, supra, but we think what has been said suffices to show that authority in no manner involved this question. And, indeed, we think, a careful consideration of the holding in Phillips v. Taylor,
It results that the decree will be reversed, and the cause remanded.
Reversed and remanded.
BOULDIN, BROWN, and FOSTER, JJ., concur.