Monroe County Bank v. Qualls

• Decision Date: 19 December 1929
• Docket Number: 1 Div. 574.
• Citation: 220 Ala. 499,125 So. 615
• Parties: MONROE COUNTY BANK v. QUALLS ET UX.
• Court: Alabama Supreme Court

125 So. 615

220 Ala. 499

MONROE COUNTY BANK v. QUALLS ET UX.

1 Div. 574.

Supreme Court of Alabama

December 19, 1929

Rehearing Denied Jan. 25, 1930.

Appeal from Circuit Court, Monroe County; F. W. Hare, Judge.

Bill to foreclose a mortgage by the Monroe County Bank against A. J Qualls and wife. From a decree sustaining a demurrer to the bill, complainant appeals. Affirmed.

Barnett Bugg, Lee & Jones, of Monroeville, for appellant.

J. D Ratcliffe, of Monroeville, for appellees.

SAYRE J.

Appellant's bill to foreclose a mortgage executed by appellees Qualls and wife. Demurrer to the bill was sustained, and the bank appeals.

The mortgage, set out as an exhibit to the bill, was executed February 23, 1926, by appellees to secure payment of an indebtedness of $543 evidenced by promissory note of even date. One provision of the mortgage was that it should "stand as security for the principal debt as above set out, and for any other debt due or advances received by the party of the first part [Qualls] from the party of the second part [the bank]. And any payment made by the party of the first part shall be first applied to paying the indebtedness other than that described in the note above described." And the purpose and prayer of the bill is to foreclose the mortgage in order to collect a note for $605, executed also on February 23, 1926, but after the execution of the note for $543. The note for $605 was executed by Tony Frye, W. W. Frye, Alex Frye, and A. J. Qualls, signing in the order named. On the note last described-the note for $605-a credit of $140 is acknowledged. Nothing is alleged as to payments vel non on the note for $543.

The chancellor correctly ruled when he sustained the demurrer to the bill on the theory that the mortgage did not secure the indebtedness on account of the nonpayment of which the bill was filed. Appellant in its dealing with the two items of indebtedness and with the mortgage itself appears to have taken the same view. This we say for the reason that appellant when filing its mortgage for record, March 1, 1926 paid only the privilege or revenue tax due by law upon the amount specified on the face of the paper-a fact to be noted, as this court held in Morgan County Bank v. Terry, 213 Ala. 313, 104 So. 762. Moreover, it may be presumed evidentially, but not conclusively, that the note specifically mentioned in the mortgage has been paid-this for the reason that the present proceeding by the mortgagee, if successful, would exhaust the mortgage security; but, if that debt has been paid, then appellant has failed to observe that stipulation of the mortgage in these words: "And any payment made by the party of the first part [appellee Qualls] shall be first applied to paying the indebtedness other than that described in the note above described [in the mortgage]." This may have been a stipulation in favor of the mortgagee; but no waiver is averred or presumed. But, aside from the circumstances...