95 Ala. 463 | Ala. | 1891
The appellant, who was the defendant below, sold certain land in the city of Birmingham under a power of sale in a mortgage, which had been made to secure two promissory notes payable to himself. The principal and interest due on the notes at the date of the sale amounted to $29,013.31. The mortgaged property was sold for the sum of $32,000. Out of this sum the defendant retained the amount of the principal and accrued interest on the notes, the amounts of the advertising and auction fees, and also the sum of $2,901.33 as attorney’s fees. The claim of the plaintiff is based upon his alleged right to the sum retained by the defendant as attorney’s fees.
The uncontroverted evidence shows that, before the advertisement and sale by the defendant under the power in the Mortgage, the mortgagors had sold the property covered by
There is one provision in the mortgage itself for the payment of attorney’s fees, and another and different provision on the same subject in the notes which were secured by the mortgage. The mortgage confers upon the mortgagee a power sell the property for cash, and to devote the proceeds of the sale “to the paying, first, the expenses of advertising and selling, and all attorney’s or solicitor’s fees.” This is the extent of the provision in the mortgage on the subject. A clause in the following words is found in each of the notes : “It is further agreed that the undersigned shall pay all costs for collecting the above, not more than ten per cent., on failure to pay at maturity.” The two provisions are separate and distinct, without any reference in the one to the other. There is an independent field of operation for each of them. A creditor whose demand is evidenced by the debtor’s personal obligation, which is secured by a mortgage upon land, has the 'choice of foreclosing the mortgage upon the breach of the condition thereof, or of proceeding against the debtor without regard to the mortgage security. If either of the two resources should be exhausted without satisfying the demand, resort may be had to the other. Until the demand is satisfied, the creditor may seek at the same time, but by separate and independent proceedings, both the enforcement of the personal liability of the debtor and the foreclosure of the mortgage security. The power of sale in the mortgage affords a means of enforcing the security alone. In making a sale under the power, the creditor avails himself of a special provision for subjecting to the satisfaction of his demand only the property covered by the mortgage. The exercise of the power may involve the expense of attorney’s or solicitor’s
It seems that tbe result would have been tbe same, if tbe provisions in tbe notes could be regarded as applying to a sale under tbe power contained in the mortgage. In reference to tbe same provision in a note this court has said : “Stipulations to pay a given per cent, for tbe services of attorneys are held to import liability for reasonable compensation for legal services rendered in that behalf, not in excess of tbe amount limited. We do not think that tbe stipulation here is for more than this.” — Montgomery v. Crossthwate, 90 Ala. 553-575. Similar provisions have been given a like' effect in other cases. — Munter v. Linn, 61 Ala. 492; Camp v. Randle, 81 Ala. 240. Contracts for tbe payment of attorney’s' fees are recognized as legitimate, when their operation is to provide for tbe reimbursement of tbe creditor who, in consequence of tbe debtor’s default, has been put to tbe expense of employing an attorney to render services in tbe enforcement of bis demand. Such
Affirmed.