Tidwell v. Wittmeier

| Ala. | Apr 9, 1907

ANDERSON, J.

When this case was here before as reported in 147 Ala. 354" court="Ala." date_filed="1906-02-06" href="https://app.midpage.ai/document/wittmeier-v-tidwell-7362108?utm_source=webapp" opinion_id="7362108">147 Ala. 354, 40 South. 963, we in effect held that the bill contained equity, and we will not recede from that ruling. The bill not only avers a tender, but offeis to pay any balance that may be ascertained to be due upon the mortgage, and prays, in the alternative, that he be permitted to pay what amount may be found due and have the mortgage cancelled.—Whitley & Trimble v. Dunham Lumber Co., 89 Ala. 493" court="Ala." date_filed="1889-11-15" href="https://app.midpage.ai/document/whitley--trimble-v-dumham-lumber-co-6513870?utm_source=webapp" opinion_id="6513870">89 Ala. 493, 7 South. 810. The bill as amended does not- aver that no steps had been taken to collect the debt, notwithstanding it' avers that the claim was in the hands of an attorney, and the averment that no attorney’s fee was due was but the legal conclusion of the pleader. Nor does the bill aver a tender of interest from the date of maturity to the date of the alleged tender.

The other phase of the amendment is doubtless intended to test the right of the mortgagee to claim that all of the installments became due* upon a. sale of the property by the mortgagor to the complainant. The mortgage clearly piovides that all of the installments should become due in case of a sale of the property. Counsel contend that this is an unreasonable condition in the mortgage, as the complainant would lose interest by paying all of the debt before some of the payments became due under the original terms of the mortgage. This clause was put in the mortgage for a purpose, and the parties thereto were bound by it. It is not within the the power of this court to make contracts for parties. The complainant was not. only chargeable with notice as to the character of the mortgage on the land he was buying, but the deed conveying the land to him recited the existence of the mortgage and he puichased the land subject to said mortgage. He knew that, the very moment the mortgagor conveyed him the land, all of the installments fell clue under the express terms of the mortgage. He was not compelled to buy the land, and, after doing so subject to the mortgage, he is in no position to complain of a clause contained therein.

The chancellor properly overruled the motion to dismiss for want, of equity, and properly sustained the -demurrers to the bill as amended; and the decree is affirmed upon the original and cross appeal.

Affirmed.

Tyson, C. J., and Dowdell and McClellan, JJ., concur.