144 So. 579 | Ala. | 1932
This is a bill filed by R. L. Hylton against Maggie W. Cathey to enjoin the foreclosure of a mortgage on the ground that a substantial payment had been made to the mortgagee, W. J. Willis, to be credited on said mortgage.
It is averred that the said W. J. Willis is dead and left as his only heir Maggie W. Cathey, his daughter; that the said Maggie W. Cathey is threatening to foreclose said mortgage; that complainant, R. L. Hylton, has made a tender of the balance on said mortgage, and has kept said tender good by paying the same to the register of the circuit court.
The respondent filed an answer denying the payment in question had been made, and asked that her answer be treated as a cross-bill, that the mortgage be foreclosed, and prayed for the allowance of an attorney's fee for the foreclosure of said mortgage in equity. The mortgage provided for foreclosure under the power of sale, and for a reasonable attorney's fee for said foreclosure; but did not provide for the payment of an attorney's fee if said mortgage was foreclosed in a court of equity. The demurrer raises this question; and the court overruled the demurrer.
This cause was submitted on the pleading and proof, and the court granted the relief prayed for in the cross-bill.
The cross-bill alleges "that in the mortgage herein above referred to, complainant agreed to pay all cost of collection including a reasonable attorney's fee, and that it has become necessary for this defendant to employ counsel to foreclose this mortgage or collect the debt secured thereby."
The mortgage exhibited provides: "* * * The debt hereby secured shall become due and payable, and the party of the second part, its successors and assigns, by any agent it may select, is hereby authorized without the process of law to take possession of any or all of said property, and to sell the same or any part thereof for cash at private or public sale, without delay, or at public outcry for cash to the highest bidder at Epes, Alabama, after advertising the same for ten days by posting notices there in public places in said county, and such sale may be made before taking possession of said property; and the parties of the first part agree to pay all costs of taking *606 possession of said property, of caring for and feeding the same, and the cost of making said sale, including a reasonable attorney's fee. The party of the second part may buy any of said property at such sale. * * * The proceeds of said sale shall be applied, first, to the payment of all expenses of seizing, caring for and selling said property, including a reasonable attorney's fee; second, to the payment of the debt due the party of the second part, and the balance to be paid to the parties of the first part."
The complainant in the cross-bill did not declare her right to provisions now to be adverted to; the note secured thereby contained the following provision: "* * * They each severally agree to pay all costs of collecting, or securing, or attempting to collect or secure this note, including a reasonable attorney's fee, not less than ten per cent, whether the same be collected or secured by suit or otherwise."
Where the mortgage merely provides that the mortgagee may sell the premises at public outcry and from the proceeds pay all costs of foreclosure, including an attorney's fee, no attorney's fee can be recovered in a suit in equity to foreclose; it being held that the provision thereof is confined to the sale made in exercise of the power. Bynum v. Frederick,
In Bynum v. Frederick, supra, the mortgage provided that, if default was made in the payment of the two notes described in the mortgage, then the mortgagee was authorized to sell said lots at public outcry, after giving notice, and from the proceeds pay all costs of foreclosure, including a reasonable attorney's fee; a bill was filed by the mortgagee to foreclose the mortgage in equity, and there was allowance by the trial court of an attorney's fee for the foreclosure suit. This court, through Chief Justice Stone, held that there would be no question that, if foreclosure had been effected by advertisement and sale under the power, it would have been proper to charge on the fund a reasonable fee to counsel for making the sale and perfecting the conveyance, but that a fee charged in the foreclosure suit in equity did not fall within the terms of the mortgage.
The decision in Tompkins v. Drennen, supra, was by Mr. Justice Walker. There the plaintiff sued the defendant to recover the surplus proceeds of the sale of the mortgaged property under the power — for the amount charged as attorney's fees — and the court held that the proviso in the mortgage covered only such fees as were incident to the exercise of the power of sale, and would not cover expenses incurred for fees for the prosecution of an action at law; only for the foreclosure of the mortgage under the power, citing Bedell v. New England Mortgage Security Co.,
In the case of Cooper v. Parker, supra, the mortgage provided for a foreclosure before the courthouse door of Elmore county, with the proviso for a reasonable attorney's fee for foreclosing the mortgage; and the court held that the fee was for foreclosure by sale under the power, and not by suit in equity.
In the case of Seed v. Brown, supra, the mortgagor filed a bill against the defendant to restrain threatened foreclosure of the mortgage, the theory being that the mortgage had been previously paid, and the trial court concluded against the complainant on the issue of payment, and fixed and allowed $100 as a reasonable attorney's fee for services in collecting the mortgage. There was no cross-bill, as shown in the original record. It was provided in that mortgage that the proceeds of sale should be applied first to the expenses of the sale of the property and attorney's fee for foreclosing the mortgage. This court declared that the language employed only embraced and contemplated services by an attorney in a foreclosure under the power of sale provided in the instrument, that it was not possible to change or expand the effect of the terms of the instrument with respect to this matter by reference to the fact that the mortgagor, by resort to equity in this cause, prevented or interfered with foreclosure under the power, and that the court erred in allowing the attorney's fee specified in the decree. That case (Seed v. Brown,
In Bedell v. New England Mortgage Security Co.,
In Jackson v. Prestwood,
In the case of Speakman v. Oaks,
In Pollard v. American Freehold Land Mortgage Co.,
In the case of Wells, Adm'r, v. American Mortgage Company of Scotland, Limited,
The allowance of attorney's fees as a part of the secured debt is "dependent upon the agreement of the contracting parties, within the terms of which the claim for fees mustfall," is the observation in Eslava v. New York National Building Loan Ass'n,
In Thomas, Superintendent of Banks, v. Barnes,
"The court was without error in denying appellants' claim for an attorney's fee. It does not appear that such fee had been incurred prior to the filing of this bill for redemption. Only such fees as were incurred prior to the filing of the bill, if any, could be recovered, as there is no provision in the mortgages for attorney's fees for defending a suit of this nature. Lampkin v. Irwin [
"In Hazlewood v. Walker,
The case of O'Neal v. Lovett,
Under the pleading for redemption from the mortgage, there being no foreclosure and tender of the amount alleged to be due thereon, and under the answer and cross-bill denying payment and seeking foreclosure, and the authorities, it would appear that attorney's fees can not be recovered. However, there was no error in overruling complainant's demurrer to the cross-bill, for the reason that the demurrer was addressed to the cross-bill as a whole, and not to that paragraph and part of the cross-bill claiming attorney's fees.
The decree of the circuit court is therefore affirmed.
Affirmed.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur. *608