American Freehold Land-Mortgage Co. of London v. Pollard

CourtSupreme Court of Alabama
Citation24 So. 736,120 Ala. 1
PartiesAMERICAN FREEHOLD LAND-MORTGAGE CO. OF LONDON, LIMITED, v. POLLARD ET AL.
Decision Date05 November 1898

Appeal from city court of Montgomery; T. M. Arrington, Judge.

Bill by the American Freehold Land-Mortgage Company of London Limited, against Rebecca M. Pollard and others, to compel the latter to affirm or disaffirm a sale of mortgaged premises. There was a judgment for defendants, and plaintiff appeals. Reversed.

Caldwell Bradshaw and Webb & Tillman, for appellant.

John G Winter and George M. Marks, for appellees.

PER CURIAM.

The appellees Pollard executed a mortgage to the appellant upon certain lands to secure a loan of money, and a second mortgage upon the same lands to one B. K. Collier, who transferred and indorsed the same to F. M. Dunton. Default having been made in the payment of the debt secured by the mortgage to appellant, by virtue of the power and authority contained in the mortgage it proceeded to foreclose the same and became the purchaser at its own foreclosure sale, without such authority having been granted by the mortgage. The price bid exceeded that of the debt due and unpaid. The present bill was then filed by the appellant, the purpose of which is to compel the mortgagors, and F. M. Dunton, the second mortgagee, to elect either to affirm or avoid the purchase made by the appellant. The bill contained an averment of the amount of the debt which remained unpaid at the time of the foreclosure under the power of sale, the default, the amount of the purchase price bid by the purchaser, and averred that by the provisions of the mortgage, complainant was entitled to an allowance for reasonable attorney's fees, both on account of the foreclosure of the mortgage under the power of sale and for services rendered as such in the present litigation. The holder of the junior mortgage did not answer the bill, and decrees pro confesso were taken against him. The mortgagors answered the bill, and upon various grounds denied its validity, and severally contested the right of complainant to foreclose and apply the security afforded by the mortgage to the mortgage debt. In the answer respondents stated that, in the event the validity of the mortgage should be sustained by the court, respondents then elected to ratify the sale under the power contained in the mortgage and the purchase by complainant. The ratification was conditional and made to depend upon the result of the litigation, growing out of the denial by the mortgagors of the validity of the mortgage itself. The chancery court sustained the validity of the mortgage, and by its decree allowed complainant all the compensation claimed by the bill as attorney's fees. From this decree the mortgagors Pollard appealed to this court. The case and the opinion of the court is reported in 103 Ala 289, 16 So. 801. The main question presented to this court on that appeal involved the validity of the mortgage. This court affirmed the decree of the chancery court, sustaining the validity of the mortgage, and consequently the election by the mortgagors to ratify the foreclosure sale made under the power and the purchase of the property by the mortgagor. The cause was reversed upon the sole ground that, under the case made by the bill, the complainant was not entitled to any allowance as attorney's fees. Upon the remandment of the cause, the complainant, by leave obtained, amended its bill, and by the amendment averred that, in and by the fifth clause of the mortgage, it was provided that if the mortgagors should make default, and if it should become necessary to employ an attorney to foreclose this mortgage, or collect any part of the debt herein secured, they will pay such reasonable attorney's fees, and all other lawful and proper costs and expenses that may be incurred by the party of the second part in that behalf, and this mortgage shall stand as security for the same; and it was further averred that the mortgagors did make default in the payment of the debt, and that it did become necessary to employ an attorney to foreclose the mortgage and to collect the debt and interest secured thereby, and that it incurred a liability to pay, and has paid its said attorneys (a named sum) in foreclosing said mortgage by advertisement and sale under the power therein, and that the same was a reasonable fee; and there were other sums mentioned as lawful costs and charges for advertising and making the sale. The mortgage was made an exhibit to the bill, and by proper averments it became a part of the bill of complaint, and it appears that the fifth paragraph is substantially as averred in the amendment to the bill, above copied. The mortgage contains the further provision that, in the event the land is sold to satisfy the debt, "the proceeds shall be applied, first, to the payment of the expenses incurred in advertising and making the same, and to the payment of such reasonable attorney's fees as may be incurred by the said party of the second part." Upon motion of the respondents Pollard, the amendments to complainant's bill, claiming...

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8 cases
  • Pollard v. American Freehold Land Mortg. Co.
    • United States
    • Alabama Supreme Court
    • 17 de dezembro de 1903
    ... 35 So. 767 139 Ala. 183 POLLARD ET AL. v. AMERICAN FREEHOLD LAND MORTG. CO. OF LONDON, LIMITED. AMERICAN FREEHOLD LAND MORTG. CO. OF LONDON, LIMITED, v. POLLARD ET AL. Supreme Court of Alabama December 17, 1903 ... peal ... from City Court of Montgomery; A. D. Sayre, Judge ... Bill by ... the American Freehold Land Mortgage Company of London, ... Limited, against Rebecca M. Pollard and others. From the ... decree, both parties appeal. Modified and affirmed ... ...
  • Steed v. Carmichael
    • United States
    • Alabama Supreme Court
    • 21 de maio de 1931
    ... ... Farrior, 187 Ala. 181, 65 So. 364; ... American Freehold Land Mtg. Co. v. Pollard, 120 Ala ... 7, 24 So ... ...
  • Todd v. Interstate Mortg. & Bond Co.
    • United States
    • Alabama Supreme Court
    • 6 de abril de 1916
    ... ... 653, 41 So. 664. In American Freehold Land Mortgage Co ... v. Pollard, 120 Ala. 1, 24 ... ...
  • Johnson v. Davis
    • United States
    • Alabama Supreme Court
    • 19 de dezembro de 1912
    ... ... Perdue v. Brooks, 85 Ala. 459, 5 ... So. 126; American Mortgage Co. v. Pollard, 132 Ala ... 155, 32 So. 630; ... ...
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