139 So. 94 | Ala. | 1932
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The bill makes reference to former proceedings in which the mortgagor paid into court the sum claimed by her to be due thereon, a history of which may be found in Greene v. Greene,
The payment of the money into court, therefore, in that proceeding, could not serve the purpose of a tender. There is no pretense of any tender otherwise. Nor are there any averments justifying an avoidance of the foreclosure of the mortgage as for any perversion *61
of the power of sale from its legitimate purpose to that of oppression of the debtor and to purposes foreign to that for which it was intended. Castleman v. Knight,
It is to be inferred from the bill that defendants are insisting upon an attorney's fee, and that any redemption effected should be confined to that of the statutory right. But the bill contains no averments looking to the assertion of such right, and, being insufficient as one seeking an avoidance of the foreclosure, it is without equity as to such mortgagor. The mortgagee joins the mortgagor in this bill, and seeks to have the court declare the sum previously deposited was sufficient to pay the debt. In this respect her rights could rise no higher than those of the mortgagor. While the mortgage is not made an exhibit, nor the provisions therein contained set out, yet the bill does not negative provisions for payment of attorneys' fees, but denies the right to such fee upon other reasons, thus impliedly conceding a claim therefor under the terms of the mortgage, and shows a claim on defendant's part therefor. The mortgage, according to the bill's averments, was duly assigned to defendants for the purpose of collection, which gave the attorneys the implied authority to foreclose, if deemed necessary. 6 Corpus Juris, 641. When in their hands for collection after default, a reasonable attorney's fee accrued. Mack v. Scaccia,
Reference being made in the bill to defendants' claim of an attorneys' fee, it will be presumed (construing the pleading most strongly against the pleader) that a reasonable attorneys' fee became an incident to the mortgage debt. Randolph v. Vails,
It is not made clearly to appear in the bill (and the rule of equity pleading requires that the complainant must show with clearness and certainty the right that warrants protection, and inform the defendant sufficiently of the nature of the case he is called upon to defend, Ezzell v. Richardson,
Reduced to the last analysis, it would seem the inference is reasonably deducible from the bill's averments that the mortgagee has joined the mortgagor in the contention that the original sum deposited in court was sufficient to pay the debt, and that the matter of attorneys' fee be laid to one side, and the mortgagor allowed to pay the amount she insists was due. Presumably the foreclosure was for her benefit, and no reason is made to appear that it be set aside, unless it be the mortgagee so desires in order to assist the mortgagor to the extent of permitting the payment of the sum deposited in full satisfaction and be relieved of attorneys' fee. The bill as framed fails to disclose any necessity for setting aside the foreclosure for protection of the interest of the mortgagee.
The case is not brought within the influence of those authorities relied upon by appellants (among them Messer-Moore Ins. Real Estate Co. v. Trotwood Land Co.,
From a legal standpoint, we have some difficulty in finding a common interest in the subject-matter, and are somewhat impressed with defendants' contention as to misjoinder of parties complainant (Commercial R. E. B. Ass'n v. Parker,
The court correctly ruled in sustaining the demurrers to the amended bill, and the decree is accordingly here affirmed.
Affirmed.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur. *62