Chichester v. First Nat. Bank of Birmingham , 242 Ala. 227 ( 1941 )

In deference to the earnestness of counsel for appellant on application for rehearing we have given careful consideration to the following authorities: Janes v. Fitchburg R. Co., 50 Hun 310, 3 N.Y.S. 165; Hottell v. Kemp, 139 Kan. 239, 31 P.2d 64; Hine v. Myrick, 60 Minn. 518, 62 N.W. 1125 and Watson v. Smith,60 Minn. 206, 62 N.W. 265.

The case of Janes v. Fitchburg R. Co., supra, deals with the construction of a statute and that of Hottell v. Kemp, supra, merely places an interpretation upon a contract between the parties gathered from the writings and surrounding facts and circumstances.

The case of Hine v. Myrick, supra, by the Minnesota Court was merely to the effect that a covenant by the grantee of mortgaged premises to pay the mortgage was an agreement to pay the debt secured by it. And in Watson v. Smith, supra, by the same court, a note and mortgage had been formally assigned as collateral security for a debt, the assigned mortgage being given as security for the note thus assigned. The holding was that the power of sale given to the assignee to sell the mortgage upon default included the debt as evidenced by the note secured thereby.

In the instant case the mortgagee merely released the property covered by the mortgage in order to complete the title of the purchaser who had bought direct from the mortgagors. And the mortgagee received and gave credit for the purchase price. The cited authorities do not sustain the theory that by the execution of such release and any agreement in relation thereto a reasonable inference could be drawn that the satisfaction of the entire mortgage debt resulted. We think further elaboration unnecessary.

The application for rehearing will be overruled.