Branch Bank at Mobile v. Furness

12 Ala. 367

• Court: Supreme Court of Alabama
• Decided: June 15, 1847
• Status: Published

Opinion

GOLDTHWAITE, J.

One view is entirely decisive of this cause, without entering upon the question decided by the chancellor, or those which are supposed to be presented by the bill and proofs in addition to it. It does not appear from any allegation in the bill, that the complainant has ever reduced the demand against Wymañ to judgment, and having recently held, in the cas<^ of Thomason v. Scales, supra, that none but a judgment creditor is entitled to redeem under the statute, the bill fails on that ground. The circumstance that the complainant has prosecuted his.mortgage to a foreclosure, does not place him in any better condition as to the debt, than if no proceedings on the mortgage had been had, as this would not prevent theclebtor from interposing the bar of the statute of limitations to a suit on the .mortgage debt, allowing that to have run, and possibly too as to any other defence.

Decree affirmed.