On August 16, 1982, David McGowan and Shirley McGowan purchased a house from Grace Wills Brannon for $28,000. The McGowans paid Brannon $3,600 as a down payment; they were to pay $1,400 on January 10, 1983, and the balance of $23,000 was to be paid in monthly installments over 15 years, beginning on September 15, 1982, with Brannon providing seller financing. At the time of the transaction, Brannon executed and delivered to the McGowans a deed to the property and the McGowans executed and delivered to Brannon two promissory notes and a mortgage. One of the promissory notes was for the $1,400 due on January 10, 1983, and the other promissory note was for the $23,000 balance that was payable in monthly installments. The mortgage repayment provision provided:
"That Whereas, David McGowan and Shirley McGowan, husband and wife, . . . are justly indebted to Grace Wills Brannon . . . in the sum of Twenty-three Thousand and no/100 Dollars ($23,000.00) evidenced by a note of even date herewith providing for the payment of $1,400.00 on January 10, 1983, and a note of even date herewith providing for the payment of principal and interest in one hundred eighty (180) monthly installments of $279.75 each, commencing on the 15th day of September, 1982, and continuing on the 15th day of each month thereafter until said indebtedness is paid in full."
The mortgage further stated that the notes given to secure the purchase price were "to be paid according to the terms and installments as set out above." There was no provision for prepayment.
The McGowans paid the $1,400 note as required and paid monthly installments on the $23,000 note through June 15, 1994. Thereafter, the McGowans stopped making payments. Before discontinuing the payments on the $23,000 note, the McGowans asked Brannon to give them a payoff figure. Brannon told the McGowans that she did not want the indebtedness paid in advance, but that if they insisted on doing so, she wanted the principal amount due plus the interest she would have earned had the note been paid in accordance with its terms. The McGowans never tendered that amount.
Subsequently, the McGowans sued, seeking a judgment declaring that they had the right to prepay, without payment of unearned interest, the promissory note that was payable in monthly installments and that they had the right to secure a release of the mortgage. The McGowans also sought damages for Brannon's refusal to accept a payoff of the note. Brannon counterclaimed for the past due installments (for the months July through December 1994) in the amount of $1,678.50, interest, attorney fees, and costs. The trial court, after conducting an ore tenus hearing, entered a judgment for the McGowans, declaring that they had the right to satisfy the note and mortgage held by Brannon by paying to Brannon the principal amount due after the June payment ($10,039.71), plus interest on that amount at the rate of 12.25% per annum, until the principal was paid and that upon such payment, the note and mortgage would be satisfied in full and Brannon would be required to satisfy the mortgage of record. The judgment also denied the McGowans' claim for damages; denied Brannon's counterclaim; provided that the parties would be responsible for their own attorney fees; and taxed costs against the McGowans. Brannon appealed, contending that the trial court erred in allowing the McGowans to prepay their mortgage, because, *Page 996 she argued, the accurate rule of law is that absent an agreement of the parties, a mortgagor cannot unilaterally force a mortgagee to accept prepayment of a debt.
The Court of Civil Appeals affirmed, noting that "[t]he traditional common law proposition [which was based on the reasoning that allowing prepayment could cause inconvenience to mortgagees who often extend credit as an investment] is that when there is no contrary statutory authority, or agreement between the parties, a mortgagor generally has no right to pay off the obligation before the stated maturity date," but stating that "there has been a trend to change the prevalent common law rule, both statutorily and judicially," citing authorities, including Ala. Code 1975, § 5-19-4(c).1 Brannon v.McGowan, 683 So.2d 991, at 992 (Ala.Civ.App. 1995).
According to the Court of Civil Appeals, "[T]he better reasoning is found in the opinion of the Pennsylvania Supreme Court [in Mahoney v. Furches, 503 Pa. 60, 468 A.2d 458 (1983), a case factually similar to this case], which reversed the common law rule prohibiting prepayment in favor of a presumption that, when loan documents are silent regarding prepayment, the debtor has the right to prepay." 683 So.2d at 992. In adopting the reasoning of the Pennsylvania Supreme Court in Mahoney, the Court of Civil Appeals held that "the old common law rule [prohibiting prepayment when loan documents are silent regarding prepayment] is inconsistent with another common law rule; absolute restraint of the power of alienation is void as against public policy." 683 So.2d at 993.
Judge Crawley dissented, maintaining that the court was bound by the common law rule unless it had been abrogated by the legislature — that any deviation from the common law was within the province of the legislature, not the judiciary. 683 So.2d at 993.
In addressing the dissent and explaining the majority's deviation from the common law, the majority of the Court of Civil Appeals stated that while the dissent accurately stated the law, " 'the common law is not static, but is constantly undergoing change, and extension, to meet changing conditions, due to the ever expanding business and social fabric.' " 683 So.2d at 993 (quoting Woodmen of the World Life Ins. Soc. v.Guyton, 239 Ala. 216, 220, 194 So. 655, 658 (1940)).
Brannon petitioned for certiorari review, which we granted to determine whether the maker of a promissory note, secured by a real estate mortgage and payable in monthly installments, has a right to prepay the indebtedness, without payment of the unearned interest, and secure the release of the mortgage lien, when loan instruments are silent as to prepayment.
It is undisputed that when Brannon and the McGowans entered into the contract for the sale of the house, the applicable rule of law was the common law rule that when there is no contrary statutory authority and no contrary agreement between the parties, a mortgagor generally has no right to pay off the obligation before the stated maturity date. Even if we agreed with the Court of Civil Appeals that the common law rule pertaining to prepayment needed to be changed, we could not do so in this case without impairing the obligations of the contract between Brannon and the McGowans.
This State has a strong preference for protecting contractual obligations. The Constitution prohibits the impairment of contractual obligations by the legislative and judicial branches of state government. See Art. I, § 22, Ala. Const. of 1901 ("nor any law, impairing the obligations of contracts, . . . shall be passed by the legislature"), and Art. IV, § 95, Ala. Const. of 1901 ("[t]here can be no law of this state impairing the obligation of contracts by destroying or impairing the remedy for their enforcement"). See InternationalUnderwriters/Brokers, Inc. v. Liao, 548 So.2d 163 (Ala. 1989);Milton Construction Co. v. State of Alabama *Page 997 Highway Department, 568 So.2d 784 (Ala. 1990); 17 Am.Jur.2dContracts § 178 (1964).
Brannon was 69 years old when she entered into this contract; she made it as an investment to supplement her Social Security income in later years. The contract was based upon the then-existing law — the common law rule that when loan documents are silent regarding prepayment the debtor has no right to prepay. Courts should not change contract law years after parties have entered an agreement based on the law that was in effect when they entered it; rather, such a change should be a matter for the legislature and such a change should apply only to those contracts entered into after the enactment of the legislation.
Ala. Code 1975, § 1-3-1, states:
"The common law of England, so far as it is not inconsistent with the Constitution, laws and institutions of this state, shall, together with such institutions and laws, be the rule of decisions, and shall continue in force, except as from time to time it may be altered or repealed by the legislature."
We find no compelling reason, and no compelling changes in institutions, customs, mores, or conditions, to justify changing the common law rule pertaining to prepayment. Nor do we agree that a prohibition of prepayment constitutes an "absolute restraint" on alienation. The property could be sold or transferred subject to the mortgage, or the debt could be paid and the mortgage satisfied and the property then sold.
The judgment of the Court of Civil Appeals is reversed and the case is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
MADDOX, SHORES, and COOK, JJ., concur.
KENNEDY, J., concurs in the result.
HOOPER, C.J., and INGRAM, and BUTTS, JJ., dissent.