Summary
In Jackson v. Prestwood, 211 Ala. 585, 101 So. 185, the Bedell Case was cited with approval, and the observation made that the mortgage expressly provided for attorney's fees for a foreclosure in equity.
Summary of this case from Hylton v. CatheyOpinion
4 Div. 137.
June 30, 1924.
Appeal from Circuit Court, Dale County; J. S. Williams, Judge.
Sollie Sollie, of Ozark, for appellants.
The cross-bill does not set up an independent equity not available in the original bill, and demurrer should have been sustained. Eslava v. Crampton, 61 Ala. 507; Branch Bank v. Strother, 15 Ala. 51; Nelson v. Dunn, 15 Ala. 501; Mooney v. Walter, 69 Ala. 75; Eslava v. Elmore, 50 Ala. 587; Rogers v. Torbut, 58 Ala. 525. Cross-complainants are probably not entitled to attorney's fees claimed in the cross-bill. Am. Mtg. Co. v. Pollard, 132 Ala. 155, 32 So. 630. If so, they are allowable without a cross-bill. Speakman v. Oaks, 97 Ala. 503, 11 So. 836.
Riley Stokes, of Ozark, for appellees.
Counsel argue the questions raised, but without citing authorities.
The original bill was by the mortgagor to enjoin a sale of the property under the mortgage, sought an accounting and the payment of the mortgage debt. Respondent answered and sought by cross-bill affirmative relief; that is, the foreclosure of the mortgage. A cross-bill, or answer in the nature of a cross-bill, was essential to a foreclosure and which could not be decreed without same. Bedell v. New Eng. Mtg. Secty. Co., 91 Ala. 325, 8 So. 494; Ketchum v. Creagh, 53 Ala. 224; Davis v. Cook, 65 Ala. 617.
The fact that a mortgage contains a power of sale does not deprive an equity court of jurisdiction of an action to foreclose, and the mortgagee may file a crossbill to foreclose when the original bill seeks an injunction and cancellation. Vaughan v. Marable, 64 Ala. 60. The mortgage expressly provides for an attorney's fee for a foreclosure in equity.
The trial court did not err in overruling the appellants' demurrer to the cross-bill, and the decree of the circuit court is affirmed.
Affirmed.
SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.