130 So. 900 | Ala. | 1930
Appellee's bill seeks the foreclosure of a mortgage averred to have been executed by appellants' predecessors in title. Appellee's bill avers its right as that of administrator with the will annexed of Jemmie P. Kirkland, deceased, who had survived her husband, D. L. Kirkland, mortgagee, by whom the land in suit had been devised to her. The appeal is from a decree overruling appellants' demurrer to appellee's bill.
A presumption of the payment of a mortgage debt arises after the lapse of twenty years, nothing to the contrary appearing. Goodwyn v. Baldwin,
It was not essential to the equity of the bill that the mortgage which complainant sought to foreclose should be set out in extenso, its execution and effect having been alleged in substance, nor was there necessity that appellee's bill should aver in terms that the will under which it was acting had been duly probated. The complaint is filed in the name of "The First National Bank of Laurel [its place of business being elsewhere shown in the bill], as administrator with the will annexed," etc. And the further averment is that complainant was appointed as administrator with the will annexed of the estate of the deceased devisee. The demurrer complains of the bill in the respects herein indicated. "It is a rule in pleading, at Common Law, that the nature of a conveyance or alienation should be stated according to its legal effect, rather than its form of words." 1 Daniell's Pl. Pr. (6th Am. Ed.) 363. And this practice has been followed in the law courts. Id. et seq. And that is the rule of permissible pleading laid down by this court. Christian v. Mortgage Company,
In a bill of review, however, as shown in Goldsby v. Goldsby,
Whether or not a solicitor's fee should be allowed to complainant's solicitor will remain for decision on final submission, and then only in the event relief under the main prayer of the bill, relief for foreclosure, shall be decreed.
The demurrer to appellee's bill was overruled without error.
Affirmed.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur. *59