Johnson v. Buckhaults

77 Ala. 276

• Court: Supreme Court of Alabama
• Decided: December 15, 1884
• Status: Published

Opinion

SOMERVILLE, J.

A mortgage may be foreclosed, and a sale directed, when the first installment of the mortgage debt falls due, without waiting for the maturity of the other installments, unless the mortgagee, by the very terms of the mortgage, is precluded, expressly or by' implication, from the exercise of this right. — McLean v. Presley, 56 Ala. 211; Walker v. Hallett, 1 Ala. 379 ; Levert v. Redwood, 9 Port. 79 ; Mussina v. Bartlett, 8 Port. 277 ; 2 Jones on Mortg. § 1459.

In construing the terms of the instrument, the settled rule is, that all. aihbiguous or equivocal language must be construed' most strongly against the mortgagors, the selection of such language being imputed'to them..

. The present debt is payable in three separate installments, only the first of which was due o,n the filing of the bill. The condition of thé conveyánce provides, that ‘if the grantors “ fail to pay said sum when due,” tlie mortgagee is authorized to take possession and sell, and out of the proceeds, after paying certain costs and expenses, to pay “ the amount, with interest, tliat may be'due” ón the mortgage debt. We are of opinion, that'there was a breach of the condition of the contract by the mortgagors when they failed to pay'the first installment of the debt when it fell due, there being nothing in the terms of the mortgage which can be construed to repel this construction. McLean v. Presley, 56 Ala. 211, supra.

If the mortgage is valid, and there is k right of'foreclosure, it is immaterial whether the vendor’s lien was waived of not. Hence, we do not consider this question.

There is no error in the rulings of the court on the demurrer to .the bill, a,nd the decree is affirmed.