Bailey v. Butler , 138 Ala. 153 ( 1902 )

SHARPE, J.

The statute of limitations does not operate to prevent the foreclosure of a mortgage on lands. It is only when the mortgage debt has been due for a time sufficient to raise a presumption that, the same has been satisfied that mere delay will furnish a defense to a bill for such foreclosure, and that time is ordinarily twenty years. — Coyle v. Wilkins, 57 Ala. 108; Cook v. Parham, 63 Ala. 456; Goodwin v. Baldwin, 59 Ala. 127; Ohmer v. Boyer, 89 Ala. 273.

The bill in this cause shows that of the two debts secured by the mortgage sought to be foreclosed, one is evidenced by a bond or instrument under seal payable one day after its date which was on December 24th, 1890, and that thereon a payment was made on February 20th, 1900. The payment, if so made, being within the ten years period which under the statute was necessary to bar the enforcement of the bond as a personal obligation, had effect to move the beginning of that period up to the time of the payment, and ten years not having-elapsed between the payment and the beginning of the suit, remedies upon the bond are unaffected by the statute of limitations, — Code, § 2811. Assuming the averments of the bill to be true, the bond is under section 859 of the Code enforceable herein as a personal obligation in so far as it may remain unsatisfied after a proper application of the proceeds of the mortgaged jiroperty. The otlier note which, the mortgage purports to secure contains á stipulation for the' payment of attorney’s fees for collecting that note, and such fees if accruing according to that stipulation become a part of the debt for which the mortgage may be foreclosed as prayed in the bill.

The mortgage purports by its terms to show a propr erly executed waiver of defendant’s right to claim real as well as personal property as exempt from the collection of the mortgage indebtedness.

From what has been said it will appear that the objections to the bill raised by the demurrers are not well taken.

Decree affirmed.