80 Ala. 236 | Ala. | 1885
The action is founded on three notes; two bearing date March 2é, 1879, and the other January 23, 1880. They were secured by mortgages on real and personal property, executed cotemporaneously with the notes. Payments were made in each year with a part of the property covered by the mortgages, or its proceeds. The plaintiffs made advances to the defendants during each of the years, exceeding the amount of the notes. The defendants contended that such payments should be applied to the notes secured by the respective mortgages. The plaintiffs insisted that the payments wore applied to the unsecured portion of the indebtedness by the consent of the defendants. This was the main contention between the parties, as to which the evidence was conflicting. The plaintiffs offered in evidence the mortgage of January 23, 18S0, the mortgage of 1879 having been previously introduced. The court admitted the mortgage, so far as it related to the note of that year, but excluded it, and- instructed the jury that they were not to consider it as an admission by the defendants of
The general rule is, that while a creditor has the right to apply a genera] payment, the debtor having made no specific application, the law, in the absence of an agreement to the contrary. applies a payment realized from a particular fund in relief of such fund. On this principle a mortgagee, in the absence of an agreement with the mortgagor, is bound to apply moneys realized from the sales of property' covered by the mortgage to the mortgage debt; but as between mortgagor and mortgagee, such moneys may, by the consent of the mortgagor, be applied to the payment of an unsecured debt. The consent of the defendants was, therefore, the material question in the case. — Sanders v. Knox, 57 Ala. 80; Levystein & Simon v. Whitman, 59 Ala. 345.
The mortgage of January 23, 1880, recites, among other things, that the defendants are justly indebted to the plaintiffs, “two hundred and thirty-six kfOO dollars, being the balance due on a mortgage executed by us on the %l¡,th day of Ma/rch, 1879 f’ and the mortgage is executed to secure this balance as well as the other indebtedness 'mentioned therein. It is a cumulative security, as respects the balance due on the notes secured by the mortgage of 1879. The testimony being conflicting, it is competent for the plaintiffs to give in evidence any admission of the defendants, tending to render the truth of the contested point more satisfactory, or to impair the weight of the evidence introduced against them in respect to the alleged consent. — Rutherford v. McIver, 21 Ala. 750. The recitals of the mortgage are evidently an admission, not only of an indebtedness to the plaintiffs, at the date of its execution, in the amounts and on the debts stated, but also of a proper and correct application of previous payments by the consent of the defendants, given at the time the mortgage was executed, if not previously; for by such application the debt was reduced to the sum admitted to be the balance. The admission may not be conclusive; but should have been submitted to the jury to determine its weight and sufficiency in connection with the other evidence. If evidence be relevant to the issue, the court can not reject it, nor prohibit its consideration by the jury as to any issue, which it tends to prove.
The parol evidence was offered to identify the first two notes set out in the complaint with the debt referred to, as the balance duo on the mortgage of 1879. For this purpose it was competent, if parol evidence was necessary. It does not vary or contradict the terms of the mortgage. While a different consideration from that recited in a deed can not be shown, it is permissible to show a greater or less consideration of the
The charge given at the request of the defendants asserted a correct legal proposition. The charge requested by the plaintiffs is abstract, and was properly refused. There was no evidence that the defendants had been charged with the hire of the mules. It is erroneous, also, in that it omitted the requisite hypothesis, that the defendants consented to the application of the payment to the unsecured debt.
In suits upon notes, in favor of which exemptions are claimed to have been waived, the fact of waiver must be averred in the complaint, and may be specially contested by the defendant. — Goetter, Weil & Co. v. Pickett, 61 Ala. 387; Code, § 2849. When contested, a statement or recital of the waiver can not be embodied in the judgment, unless the plea is found untrue. The legal effect of the verdict rendered by the jury is to find the issue of waiver in favor of the defendants.
Reversed and remanded.
