Bailey v. Butler

• Decision Date: 30 June 1903
• Citation: 138 Ala. 153,35 So. 111
• Parties: BAILEY ET AL. v. BUTLER.
• Court: Alabama Supreme Court

35 So. 111

138 Ala. 153

BAILEY ET AL. v. BUTLER.

Supreme Court of Alabama

June 30, 1903

Appeal from City Court of Talladega; G. K. Miller, Judge.

Action by George Butler against John H. Bailey and another, for foreclosure of a mortgage. From a decree in favor of plaintiff, defendants appeal. Affirmed.

The bill averred that on December 24, 1890, the defendants executed a bond, payable to the complainant one day after date, for $884.65; that on said bond defendants had paid on February 20, 1900, a credit of $3.70; that on July 23, 1892 defendants executed a note to the complainant for $647 payable November 1, 1892, and that on this note there had been a payment of $3 on February 20, 1900, which payment was indorsed on said note as a credit; that, being so indebted to the complainant, the defendants, on July 23, 1892, executed a mortgage upon certain lands, therein described, to secure the payment of said bond and of said notes; that, neither of said notes constituting the mortgage debt being paid, the complainant employed counsel to collect said indebtedness and that, by reason of said mortgage not providing for the complainant becoming a purchaser at a sale under the power therein contained, it was necessary to file the present bill to foreclose said mortgage, in order to collect said indebtedness; and that said property included in the said mortgage was not sufficient to pay the indebtedness. The prayer of the bill was that reference be had to ascertain how much the defendant was due the complainant, including reasonable attorney's fees for representing the collection of said indebtedness and for foreclosing said mortgage, and that the defendants be decreed to pay the indebtedness secured by said mortgage so ascertained, and that a personal decree be rendered over against the defendants for any balance that might be remaining after the sale of the property conveyed in said mortgage, and that it be decreed that neither of said defendants have any right to claim any property, real or personal, as exempt. The bond notes, and mortgage were made exhibits to the bill. The bond was signed by the defendants, with their legal seals attached, and contained no stipulations pertaining to the attorney's fees, but contained a waiver of exemptions. The note was signed by each of the defendants, and contained an agreement to pay attorney's fees for the collection thereof, and also a waiver of exemptions. The mortgage given to secure the indebtedness secured by the bond and the note contained a specific stipulation waiving the right to claim exemptions. Defendants demurred to the bill generally upon the ground that the debt sued on was barred by the statute of limitations. To that part of the bill containing...