Nelms v. Rogers

46 So. 453, 155 Ala. 489, 1908 Ala. LEXIS 271

• Court: Supreme Court of Alabama
• Decided: April 23, 1908
• Status: Published

Opinion

TYSON, C. J.

The bill in this cause seeks to enjoin the foreclosure of a mortgage under the power contained in it. The mortgagee, by his answer, which- is made a cross-bill, seeks a foreclosure of the mortgage. The chancellor dismissed complainant’s bill and granted relief on the cross-bill.

The theory of complainant’s bill seems to be twofold: First, there was no default such as entitled the mortgagee to foreclose; and, second, if default, it had been waived. By tbe express terms of the mortgage a default as to the entire debt secured by it occurred upon the mortgagor’s failure to pay any one of the several promissory notes which matured monthly, unless waived by the mortgagee. — Chambers v. Marks, 93 Ala. 412, 9 South. 74; Phillips v. Taylor, 96 Ala. 426, 11 South. 323. Was there a waiver of the default? When the July note matured there was an agreement between the parties that it should be extended until the date of the maturity of the August note. No attempt to collect it or to foreclose the mortgage was made until aftér the date fixed by the agreement of the parties. Certainly this agreement could not and did not operate as a waiver of the default which occurred upon the failure to pay on the day of the maturity of both notes. — Parker v. Oliver, 106 Ala. 549, 18 South. 40. Nor does the testimony sustain the contention of no default in the payment of these two notes at their maturity in August, or that the mortgagee waived such default. We entertain the opinion that the decree was correctly rendered, and that it should be af-firjned.

Affirmed.

Dowdell, Anderson, and McClellan, JJ., concur.