Opinion
5 Div. 653.
June 28, 1917.
Appeal from Circuit Court, Elmore County; Leon McCord, Judge.
Frank W. Lull, of Wetumpka, and T. G. Hilyer, of Tallassee, for appellants. W. A. Jordan and Ball Samford, all of Montgomery, for appellee.
On the undisputed facts shown by the bill of exceptions, there was a breach of the covenant to insure, and nothing done by the mortgagee had the effect of a waiver of the breach. The mortgagor properly exercised her option to declare the entire debt due, and hence the suit was not prematurely filed. In another suit between these parties for the foreclosure of the mortgage in equity, we reached the same conclusion on substantially the same evidence. Bank of Tallassee et al. v. M. R. Jordan, 199 Ala. 374, 74 So. 936.
There was no error in the sustaining of demurrers to the special pleas filed by defendants. They were no more than pleas of the general issue, and all the matters alleged were available to defendants under that plea, and were in fact put in evidence, so far as defendant had any testimony to support them. If any error was committed by the trial court in rulings on the evidence, it was technical merely, and had no bearing on the result, since the material and decisive matters of fact were without dispute. We therefore omit any detailed discussion of these assignments of error.
Defendants contend, however, that no judgment could be rendered against the defendants jointly, because the People's Bank is liable on the note, and the Bank of Tallassee is liable, if at all, only on its independent agreement to assume the debt — an entirely different cause of action. This is a misconception of the legal effect of the assumption by the Bank of Tallassee of the mortgage debt. By that assumption, accepted by the mortgagee, it became, as to the mortgagee, the primary obligor for the payment of the debt; but the mortgagor remained liable to the mortgagee as a quasi surety. 27 Cyc. 1365, e.
In such a case:
"The action may be maintained against the mortgagor, or the purchaser, who has assumed the payment of the mortgage, or against both jointly." 27 Cyc. 1351, 1352.
Defendants contend, also, that the Bank of Tallassee did not, by merely assuming the mortgage debt, become bound by the conditions and stipulations of the mortgage deed with respect thereto. This contention is unsound, for manifestly the conditions upon which the maturity of the debt depended were a part of the obligation itself, and were as binding upon the assumptor of the debt as upon the original obligor.
The contention that the mortgage deed is void upon its face, because not properly executed in the name of the bank by its president, was disposed of adversely to defendants in the other branch of this case, referred to above, and need not be further noticed.
The record shows that objections were made to the introduction of the written agreement by which the Bank of Tallassee assumed to pay the obligations of the People's Bank of Tallassee, on the ground, among others, that the execution of the paper was not proven. The paper was not self-proving, and no formal proof of its execution seems to have been offered. It may be that the error of its admission without such proof was cured, or at least rendered immaterial, by other evidence showing a clear recognition of such an obligation by the Bank of Tallassee.
But, in the absence of any argument in brief insisting upon this ground of objection, it must, under our practice, be treated as waived. Johnson v. State, 152 Ala. 93, 44 So. 671; Hodge v. Rambo, 155 Ala. 179, 45 So. 678; Georgia Cotton Co. v. Lee, 72 So. 158, 196 Ala. 599. It is therefore unnecessary to consider the related question.
Finding no prejudicial error in the record, the judgment will be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN, GARDNER, and THOMAS, JJ., concur. MAYFIELD and SAYRE, JJ., think the objection to the document referred to is entitled to consideration, and to that extent only they dissent from the conclusions stated in the opinion.