95 Ala. 611 | Ala. | 1891
It is an established rule of chancery practice, that to authorize relief both tbe allegata and probata must be sufficient, and must correspond. However full and convincing tbe proof as to any fact, unless tbe fact is averred, proof alone is insufficient.
We have examined tbe pleadings in this case, and especially tbe cross-bill, and have been unable to discover any averment of indebtedness, tbe subject of controversy, and made a basis of relief, other than tbe sum of $538.00, expressed as tbe consideration of tbe deed, and $432.00 given for tbe Crenshaw mortgage, tbe sum of $194.00 purporting to be for rent of land, and a small sum to be paid as balance to Carr. In stating tbe account originally before tbe register, it. may have been proper and necessary to show other indebtedness of tbe mortgagor, to which payments were applied; but tbe only balance due, fox which a decree of foreclosure could be rendered upon tbe pleadings, was for tbe balance unpaid of tbe debts secured by tbe mortgages. After this was done, and a final decree of foreclosure and order of sale rendered, and this decree fully satisfied, it was irregular, if not wholly without tbe jurisdiction of tbe court, to order tbe register to execute a reference, and state an account between the parties, as to other transactions and other indebtedness, not covered by tbe original or cross-bill of tbe case, and wholly outside of tbe mortgage debt.
Where, after final decree of foreclosure, payments are made, or tbe mortgaged property is sold, but tbe payments or proceeds are insufficient to satisfy tbe decree, it is right and proper to order a reference to ascertain bow much of tbe decree of foreclosure remains unsatisfied, and it is for such unpaid balance of tbe foreclosure decree that tbe statute authorizes proceedings for a personal decree, or judgment which may be enforced by execution. — Code, § 3605; Pressley v. McLean, 80 Ala. 310; Winston v. Brown
Reversed and remanded.
