Elkins v. Edwards

By the Court.

delivering the opinion.

[1.] When a mortgage has been taken, to secure the payment of a promissory note, and the remedy on the note is barred by the Statute of Limitations, is the remedy on the mortgage also barred? We think not, for the reason, that the creditor stipulated, by contract, for two remedies against his debtor, to enforce the collection of his demand. One remedy was by suit upon the note, and having obtained judgment for the amount of the note, such judgment would bind all the property of the defendant. The other remedy was upon the mortgage, by petition and foreclosure, in the manner pointed out by the Statute. By this latter remedy, the creditor can sell the mortgaged property, in satisfaction of his debt. The creditor may pursue both remedies at the same time, until he obtains satisfaction of his debt. Although the remedy on the note may be barred, after the expiration of six years, yet, the debt is not extinguished. Suit may be maintained on a new promise to pay, and the note given in evidence as the consideration of such new jjromise.

Because the remedy on the note is barred by the Statute in six years, it does not follow that the creditor’s remedy on the mortgage, being a sealed instrument, is also barred. The creditor’s remedy on the mortgage is not barred until twenty years — -the debt being unpaid. If the debt, or duty, is still owing, the creditor may adopt any lawful and appropriate remedy, for its en*327forceinent. See Miller vs. Helm, 2 Smedes & Marshall’s Rep. 697. Doe ex dem. Duvall’s heirs vs. McLosky, 1 Ala. Rep. (N. S.) 744.

Let the judgment of the Court below be reversed.