99 Ala. 427 | Ala. | 1892
This is a bill filed by the American Freehold Land Mortgage .Company against Laura A. McCall and Tristram B. McCall, to foreclose a mortgage ex
2. That Mrs. McCall was competent to bind herself and her property to the payment of attorney’s fees and all other .expenses of foreclosing the mortgage we do not doubt. She had been relieved of the disabilities of coverture by a decree of the chancellor “so far as to invest her with the power to buy, sell, hold, convey and mortgage real and personal property, and to sue and be sued as a feme sole,” and the power to mortgage her real estate carried with it the power to enter into such stipulations as a part of the mortgage as are usually incident thereto; and among these may be safely classed the stipulations of this instrument for the payment by her of the costs, including reasonable attorney’s fees, incurred by the mortgagee in collecting from her the money it had loaned her on the security of her land.
3. The assignment of demurrers which proceeds on the assumption that the bill does not show that the decree of the chancellor relieving Mrs. McCall of the disabilities of coverture as and to the extent provided by statute of force when this mortgage was executed was based upon a petition to that end which contained the requisite jurisdictional allegations, is misconceived. The bill does aArer that Mrs. McCall, at the time of filing by next friend her said petition, owned and held as her statutory separate estate the lands embraced in this mortgage, that said petition was “in writing, averring that she was the owner of a statutory separate estate, and praying her disabilities of coverture as to her said separate estate by the decree of said court or chancel
4. The question raised by the assignment of demurrer which proceeds on the theory that the agent which foreign corporations are required by the Constitution to have at a known place of business in this State must be an agent who “is authorized to exercise some of the contractual powers which the corporation is empowered or permitted to exercise by its constating instruments,” and not merely an agent whose authority is limited to accepting and receiving service of process, has been determined by this court against the appellant.—Nelms v. Edinburgh American Land Mortgage Co., 92 Ala. 157.
5. And so also has it several times been held that the institution and prosecution of suits in the courts of this State was not the doing of business here within our constitutional and statutory provisions requiring foreign corporations to have a known place of business, and an authorized agent or agents thereat before doing any business in this State.—Christian v. American Freehold Land Mortgage Co., 89 Ala. 198; Ginn v. New England Mortgage Security Co., 92 Ala. 135.
6. The fact that the mortgagors in terms waived their rights of exemption is stated in the bill, but no relief sought therein is at all dependent upon or referable to such waiver. If it be true, as is insisted by an assignment of demurrer, that the waiver of exemptions is bad as to any of the property covered by the mortgage, or as to either of the respondents, the appellant would yet take nothing by this demurrer, since, had there been no waiver or attempted waiver at all, complainants are entitled to all the relief prayed in the bill.
7. The bill not only does not show that the debt secured by the mortgage was in whole or in any part the debt of the husband, but to the contrary, it is repeatedly averred to be the debt of Mrs. McCall. The demurrers which sought immunity for Mrs. McCall and her property from liability were not only speaking demurrers but they spoke against the record.
What we have said disposes of all the assignments of