57 So. 2d 393 | Ala. | 1952
This is an appeal from a final decree of the equity court holding that the mortgage *12 which appellants seek to foreclose was not in default. The mortgage and the note secured thereby were executed by J. Reed Thompson and his wife Emily H. Thompson (appellees) in favor of Katie Duncan, now deceased, to secure the purchase price of certain lands located in Chilton County, Alabama, deeded to them by Katie Duncan.
Katie Duncan died intestate August 16, 1949. H. L. Thompson and H. F. Thompson, brothers of the deceased, were duly appointed administrators of her estate. On October 5, 1949, as administrators of her estate they instituted this action, claiming that the indebtedness secured by the mortgage was in default and seeking foreclosure thereof. Prior to bringing the action on September 4, 1949, the administrators declared all the indebtedness secured by the mortgage to be due and payable by reason of default in payment thereof. The note and mortgage which were executed on June 21, 1946, as part of the same transaction, both recite an indebtedness of $5,000 and in each instrument the $5,000 is made due and payable November 1, 1947. The mortgage also contains the following provision: "The indebtedness secured by this mortgage may be paid as follows: $500.00 on November 1st, 1947, and a like amount of $500.00 on the first day of each November thereafter, for a period of ten years, time being the essence of this agreement, until the sum of $5,000.00 is paid in full."
Katie Duncan was a widow and died at the age of 67. Her next of kin were her brothers and sisters and her nephew J. Reed Thompson. While in high school he went to live in her home with her and her aged mother and continued to reside there as a member of the family until the death of her mother. At about this time he entered Auburn and Katie Duncan went with him. Together they ran a boarding house to help him defray his expenses through college. When J. Reed Thompson married, Katie Duncan went to Birmingham to reside with her sister Mrs. Glennie Mims, a widow.
Assuming that payment of the mortgage debt was to be made in annual payments of $500 each for a period of ten years, the first payment of $500 was due November 1, 1947. Katie Duncan died August 16, 1949. At the time of her death $1053.02 had been paid on the mortgage and $45 was deposited in the Peoples Savings Bank of Clanton, Alabama, for credit on the mortgage indebtedness ten days after her death and prior to the appointment of administrators of her estate. The total of $1098.02 is arrived at as follows. On September 30, 1948, there was endorsed on both note and mortgage the receipt of $923.02. Receipt of $40 was endorsed on the mortgage under date of July 9, 1949. A further payment of $100 was made by deposit in the Peoples Savings Bank of Clanton on March 31, 1949. The foregoing amount of $923.02 was paid on the mortgage debt in various amounts, more specifically shown by the evidence, by deposit of the various amounts to the credit of Katie Duncan in the Peoples Savings Bank of Clanton. These deposits began with a deposit on December 8, 1947, of $100 and ended with a deposit on September 24, 1948, of $43, as shown by the records of the bank. The foregoing payments on the mortgage indebtedness are not questioned on this appeal.
There was deposited in court $500 on October 24, 1949, to take care of the payment due November 1, 1949. There was also deposited in court July 14, 1951, $500 to take care of any balance that may be due on the payment of November 1, 1950.
The note and mortgage although separate instruments were executed at the same time, in the course of and as parts of the same transaction. The mortgage refers to the note as evidencing the indebtedness secured by the mortgage. Accordingly the two instruments are to be read and construed together as if one in form. — Chambers v. Marks,
But it is not a question of construction of the contract, but rather a question of whether provisions of the contract have been waived. Even where time is expressly declared to be of the essence of the contract, such provision may be waived by the conduct of the party for whose benefit the stipulation is made. Lowy v. Rosengrant,
There is an acceleration clause in the mortgage and if it should be contended that failure to pay $500 promptly on November 1, 1947, matured the entire indebtedness, it is sufficient to say that here again waiver could set in under the facts and circumstances in the case. Barry v. Welch,
According to the calculations of the court the appellees either paid to Katie Duncan or to the bank for her account or into court a sufficient amount to take care of all amounts due under the mortgage to the time this appeal was taken on August 16, 1951. The court further found that the appellees were ready, able and willing to meet all requirements of the mortgage, offered to do equity and submitted themselves to the jurisdiction of the court. We consider that the court acted correctly and in good conscience in holding the mortgage not in default and not subject to foreclosure.
Affirmed.
LIVINGSTON, C. J., and BROWN and LAWSON, JJ., concur.