Fields v. Drennen & Co. , 115 Ala. 558 ( 1896 )

McCLELLAN, J.

The complainants, Drennen & Co., have no vendor’s lien on the land involved in the case. Their assignor, Depoister, waived a lien for the purchase money when he took from the vendee a mortgage on the land to secure the payment of the purchase money. — 28 Am. & Eng. Encyc. of Law, p. 179, note.

But the bill, containing, as we shall see it does, proper averments for the foreclosure of the mortgage, is not rendered bad as a bill for that purpose by a special prayer which might be construed to seek the establishment and satisfaction by sale of a vendor’s lien, there being a general prayer under which the appropriate relief may well be granted.

The bill shows that the purchase money was to be paid in annual instalments, each evidenced by a promissory note, and that the mortgage was executed to secure the payment of the purchase money. On these facts ■without more it is to be presumed that the mortgage ■was conditioned for the payment of the several instalments as they matured, and that failure to pay any instalment a.t maturity is such default under the terms of the mortgage — such a breach of its condition — as authorizes its foreclosure as to such instalment. It is averred that two of the instalments were past due and unpaid at time of bill filed. Complainant is, therefore, entitled to foreclose the mortgage for the payment of such instalments, and the decree should also embrace any instalment maturing after bill filed and prior to its rendition.—Fulgham v. Morris, 75 Ala. 245.

The foregoing disposes of all the points insisted on in the brief of appellant’s counsel adversely to the appellant, and the decree overruling the demurrer to the bill must be affirmed.

Affirmed.