| Ala. | Nov 15, 1899
— The plaintiff holding a mortgage executed by the defendant Curry and his wife on certain lands including their homestead, was proceeding to foreclose under a power when the mortgagors filed a bill alleging that the homestead was included by mistake, and praying a cancellation of the mortgage, and for an injunction to restrain the sale. The sale of the homestead tract was enjoined on the execution of the bond here sued on. The remaining lands were sold under the power and were bought by the plaintiff, who thereupon filed an answer to the bill and made it a cross-bill to com
The present suit is on the injunction bond given in the chancery cause and the only items of damage sought to be proven consist of expense of counsel incurred on account of the injunction and loss of rents and profits of the homestead tract while the injunction was in force.
The foreclosure proceedings appear from record of the chancery court which were in evidence on the trial. The facts are undisputed. They show that the only expense of counsel to which the plaintiff has been subjected, is that which the defendant Curry contracted by the terms of the mortgage to pay for its foreclosure and the collection of the debt. A witness testifies in substance that a fair and reasonable compensation for the services of counsel which were rendered “in and about the injunction part of the case” is one hundred and fifty dollars; that the fees in the entire case were one thousand dollars, which sum included “that part of services rendered in and about the injunction part of the case;” that no motion was made to dissolve the injunction but it was dissolved on final hearing of the chancery cause; that no separate or additional charge was made on account of the injunction, and the fee of one thousand dollars was under the cross-bill and according to the terms of the mortgage, decreed against the defendant as part of the debt therein secured and was paid by the plaintiff from the proceeds of the land after foreclosure sale.
Damages to be recoverable upon an injunction bond must fall within its condition and therefore must have been caused by the injunction. Hence where the injunction is not the principal aim of the suit but is merely incidental to other relief sought, the expense of counsel
To bring its claim for expense of counsel within this principle it devolved on the plaintiff to make proof that services of counsel were engaged or employed in resisting or on account of the injunction either in advance of or upon the final disposition of the chancery cause. We fail to find any evidence of resistance to the injunction unless it can be inferred from the witness’ statement as to what services of counsel were worth in “the injunction part'’ of the cause. As appears from the records in evidence, no contention or proceeding was had in that cause relating to the’injunction after its issuance except in its dissolution by and as the result of the decree dismissing the bill on final hearing of the main cause. The only services charged for by plaintiff’s counsel were for fore-dosing and collecting and it nowhere appears that such services were increased or the charges therefor augmented by reason of the injunction.
The plaintiff was enjoined only from selling the land but not from intercepting the rents. This he might have done through a receiver for which he could have applied in the pending suit. The rents did not belong to him and his only right in them was to intercept. and preserve them for application to the mortgage debt. His failure lo do so was not caused by the injunction. The claim for damage on account of rents were properly disallowed by the circuit court.
Upon the merits of the case as they appear under the issues of fact the plaintiff fails to show a right to recover and without passing on the minor assignments of error or those relating to the pleading the judgment will be reversed and a judgment here rendered for the defendant.
Reversed and rendered.