
    Bolling v. Roman.
    
      Bill in Equity' between Mortgagees, for Injmotion of Sale under Power, Adjustment of Priorities, and Foreclosure.
    
    1. Waiver of mortgage lien construed. — A letter addressed by a merchant who held a mortgage on two or more tracts of land, on one of which it was a first lien, to a firm of commission-merchants who held another mortgage on the lands, in these words: “If you will advance to G. & Co. [mortgagors] an additional amount of $2,500, for the purpose of making their arrangements to carry on their mercantile business and to make their crops, so as to make their indebtedness to you, including the above $2,500, in all $10,500,1 will and do hereby waive my mortgage lien on. the land and personal property of said G. & Go., to the extent of said indebtedness and interest, for and on your account only,” — applies not only to the $2,500 additional advance, but to the entire indebtedness ($10,600) and interest.
    Appeal from the Chancery Court of Montgomery.
    Heard before the Hon. JOHN A. Fostei;.
    The bill in this case was filed on the 1st July, 1891, by S. Roman against R. E. Bolling, and sought to enjoin a sale of lauds by tbe defendant under a power in a mortgage executed to bim by Giddens & Go., a mercantile partnership; also to adjust tbe priorities and equities of tbe parties under tbe mortgages held by them respectively, and for a foreclosure. Tbe complainant was tbe owner, by assignment from Lehman, Durr & Co., of two mortgages executed to them by said Giddens & Co., tbe first conveying a tract of land in Montgomery county and a tract in Lowndes county, and tbe second conveying tbe same lands and another tract in Crenshaw county, with certain personal property. Tbe first mortgage was given on tbe 20th January, 1886, and tbe lands conveyed by it were then subject to tbe lien of a prior mortgage in favor of J. A. Tyson. Tbe defendant’s mortgage was dated January 29th, 1886, and was a first lien on the lands in Crenshaw county, but a third lien on tbe other lands. Tbe second mortgage to Lehman, Durr - & Co. was dated February 5th, 1887, and was given to secure an indebtedness of $10,500, which was tbe balance due on tbe former indebtedness and additional advances of $2,500, made, as tbe bill alleged, on tbe faith of a waiver by tbe defendant of bis prior lien on tbe lands in Crenshaw county. This waiver was contained in a letter addressed to them by tbe defendant, which was dated at Montgomery, February 5th, 1887, and in these words : “If you will advance to Giddens & Co. an additional amount of $2,500, for tbe purpose of making bis [their] arrangements to carry on their mercantile business and to make their crops, so as to make their indebtedness to you, including tbe above $2,500, in all $10,500, I will and do hereby waive my mortgage lien on tbe land and personal property of said Giddens & Co., to tbe extent of said indebtedness and interest, for and on account of Lehman, Durr & Co. only.” Tbe bill alleged that this instrument bad never been recorded, and was not subject to registration; that a sale by tbe defendant under tbe power in bis mortgage would involve complainant in litigation with tbe purchaser, and would impair or defeat bis priority of lien; and be therefore prayed an injunction to prevent tbe sale, a foreclosure of tbe several mortgages, an adjustment of the priorities, &c.
    After answer filed, in which tbe defendant insisted that tbe waiver expressed in tbe letter extended only to tbe $2,500 additional advances made to Giddens & Co. on tbe faith of it, be moved to dissolve tbe injunction. The chancellor overruled and refused tbe motion, and bis de-cretal order is assigned as error.
    
      E. P. Morrissett, for appellant.
    TomrkiNS & Troy, contra.
    
   STONE, C. J.

We can not agree with appellants in the construction of the written agreement of R. E. Bolling, bearing date February 5, 1887. The first employment of the word “indebtedness,” in the agreement, refers unmistakably to the aggregated sum — the past indebtedness of eight thousand dollars, supplemented with the additional twenty-five hundred dollars to be advanced. The language of the writing is, “so as to make their indebtedness to you, including the above twenty-five hundred dollars, in all ten thousand'five hundred dollars.” We think and hold that the proper interpretation of the instrument is, that Bolling’s offer was to permit the entire ten thousand and five hundred dollats to take precedence over his, Bolling’s, mortgage on the lands in Crenshaw county.

The answer sets up in avoidance of the injunction, and of the suit, first, that there is a mistake in the writing, and that it does not truly express the agreement of the parties. This is affirmative matter set up, and, if proved, may be a defense to the claim, in whole or in part. It furnishes no ground ■ for dissolving the injunction. Second, while the answer does not, and probably could not, deny the complainants’ claim, as matter of knowledge, it nevertheless fails to admit its justness as claimed, and so questions it as to render it necessary to take the account, and to ascertain to' what extent, if any, ■ the original debt remains unpaid. The waiver was as to that .debt, and none other. Only to the extent that debt, with its accruing interest, remains unsatisfied,- is Bolling’s mortgage to be postponed. This is a question for proof, and does not arise on the motion to dissolve the injunction On the denials in the answer.

Affirmed.-  