Anniston Banking & Loan Co. v. Lapsley

76 So. 293 | Ala. | 1917

It may be conceded that the mortgage (Record, p. 25) provides for an attorney's fee for a sale of the property, either under the power of sale or by a bill in equity, and that it was broad enough to give the mortgagee an option as to which method to adopt, and that said provision of the mortgage falls within the influence of the case of Langley v. Andrews, 142 Ala. 665, 38 So. 238, and is not controlled by the case of Cooper v. Parker, 176 Ala. 122, 57 So. 472. Yet we think that, in order for the mortgagee to be entitled to such attorney's fee, the attorney must have resorted in some affirmative way, by bill in equity or by cross-bill, to have procured a foreclosure in order to be entitled to the fee as for a foreclosure in equity, and that the mortgage does not provide a fee for the sale in question, which was not sought, invoked, or procured through the mortgagee's original bill, or by the answer to the cross-bill. Indeed, the conduct of the complainants throughout, both by the original bill and the answer to the cross-bill, was inconsistent with the idea of a foreclosure of the mortgage, and the sale of the property was not made at the instance of the complainants, or primarily for the purpose of foreclosing the mortgage, but was ordered for the benefit of the respondent, under its cross-bill, in order that it could subject the property to the payment of its debt after the satisfaction of the amount then due the complainants upon their mortgage. The complainants filed an original bill under the statute to quiet title. Respondent answered, claiming as a creditor, and by cross-bill sought a cancellation of the deed made by the mortgagor to the mortgagees to avoid a foreclosure. The court canceled said deed, but found that the mortgage was superior to respondent's demand, and ordered the property sold by the register for the benefit of said respondent, and a satisfaction of the mortgage debt out of the proceeds before the respondent could participate therein. True, the said sale may have operated as a foreclosure or satisfaction of the mortgage; but it was a mere incident to the relief granted the respondent and was in no sense such a foreclosure by the mortgagee as authorized the payment of an attorney's fee under the terms of the mortgage. We think that the lower court erred in allowing the complainants an attorney's fee, and the decree allowing same is reversed, and one is here rendered, disallowing said fee.

Reversed and rendered.

MAYFIELD, SOMERVILLE, and THOMAS, JJ., concur.