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77 Ala. 276

Johnson v. Buckhaults

Supreme Court of Alabama

Decided December 15, 1884

Supreme Court of Alabama · decided 1884-12-15

Bill in Equity for Foreclosure of Mortgage., Appeal from the Chancery Court of Butler. Heard before the Hon. John A. Foster. The bill in this case was filed on 8th October, 1884, by George R. G. Buckhaults, against J. M. Johnson and Sarah Johnson ; and sought to foreclose a mortgage on the tract of land, which the complainant had sold and conveyed to the defendants, taking the mortgage to secure their note or obligation for the agreed price.

Relies on Walker v. Hallett · McLean v. Presley's Adm'r · Mussina v. Bartlett

Good law ✅— No negative treatment on recordhow we know

Decided 1884-12-15

How this case has been cited

Cited by 3 later decisions — most recently June 1939

3 state decisions

10188418901900191019201930decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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SOMERVILLE, J.

¶1A 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 install*278ments, 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.

¶2In 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..

¶3. 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.

¶4If 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.

¶5There is no error in the rulings of the court on the demurrer to .the bill, a,nd the decree is affirmed.

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