Billingsley's Adm'r v. Billingsley , 24 Ala. 518 ( 1854 )

CHILTON, C. J.

Under the circumstances presented by this case, it is impossible to give full effect to the contract of the parties. If no suit can be brought until the time the note is to draw interest, then we must disregard entirely the day particularly specified in the note when it is due and payable ; and if an action can be maintained on it, and a judgment recovered before the period fixed for interest to commence, then the judgment must draw interest, and thus the demand will be accumulating before the time agreed on by the parties. It is our duty, however, to give effect to the contract as far as we can, without violating any rule of law; and it is our opinion, that the construction which comes nearest to effectuating the intention, is, that the right of action accrued at the time specified in the instrument as the day of payment, but the note does not draw interest, so long as the demand is evidenced by the note; so that, if no judgment is recovered upon it, no interest accrues until the time agreed on by the parties. But if, in the meantime, a judgment is recovered, then the note becomes merged in the judgment, which now becomes the evidence of the demand, and which bears interest from the time it is rendered.— Ijams & Carr v. Rice, 17 Ala. 404.

If we recurto the mortgage given to secure this note, and treat the note and it as forming one contract, we find nothing changing in any way the legal effect of the note as evinced by the face of it. It is correctly described in the recital of the mortgage, and the law day is fixed at the period when interest begins to accrue upon the note. This does not, in any wise, affect the right of the mortgagee to proceed on the note, when it falls due, to obtain a judgment: it only controls his action as respects the mortgaged property.

The ruling of the court accords with the views we have expressed.

Let the judgment be affirmed.