Bedell v. New England Mortg. Sec. Co.

• Citation: 8 So. 494,91 Ala. 325
• Parties: BEDELL ET AL. v. NEW ENGLAND MORTGAGE SEC. CO.
• Decision Date: 08 December 1890
• Court: Supreme Court of Alabama

8 So. 494

91 Ala. 325

BEDELL ET AL. v. NEW ENGLAND MORTGAGE SEC. CO.

Supreme Court of Alabama

December 8, 1890

Appeal from chancery court, Henry county; JOHN A. FOSTER Chancellor.

H D. Clayton, for appellants.

J W. Foster, for appellee.

STONE C.J.

The bill in this case was filed by the New England Mortgage Security Company, and seeks to foreclose a mortgage on real estate, made to secure a debt to complainant therein described. The mortgage contains a power of sale on default in the following language: "The party of the second part, its agent, attorney, or assignee, may enter upon and take possession of the real estate herein described, and proceed to sell the same at public outcry to the highest bidder, after first giving thirty days' notice of the time, place, and terms of sale, together with a brief description of the property," etc. The mortgage also contains this clause: "If it shall become necessary to employ an attorney to foreclose this mortgage, or collect any part of the debt herein secured, they [the mortgagors] 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." The chancellor decreed that complainant was entitled to attorney's fees for filing and prosecuting this bill; and, on reference to the register, the allowance was fixed at 10 per cent. of the amount of the decree. The bill contains no averment of fact showing why it was necessary to resort to this chancery proceeding, instead of foreclosing the mortgage under the power of sale. In the absence of a sufficient showing therefor, complainant was not authorized to proceed in the chancery court, and charge the mortgagor with the expense of the suit. The mortgage contract contained a power of sale and we must interpret the agreement to pay attorney's fees to embrace only such fees as would be incident to foreclosure under that power, unless the averred facts should show that a foreclosure in chancery was necessary. Bynum v. Frederick, 81 Ala. 489, ante, 198; Lehman v. Comer, 89 Ala. 579, ante, 241. The case last cited approved the ruling in Bynum v. Frederick as applicable to one feature of the mortgage. Comer's mortgage, however, contained this further stipulation: "And I further agree to pay the attorney's fees and other expenses which may be incurred by the said L., D. & Co. in the collection of the said several sums, by a foreclosure of the mortgage or otherwise, for the payment of which this conveyance is a lien." It will be observed that this language is essentially different from that found in the mortgage we have under consideration. In that case the obligation was to pay "the attorney's fees *** which may be incurred," etc. In this the language is: "If it shall become necessary to employ an attorney," etc. Why was the qualifying word "necessary" employed? The mortgagor contains a power of sale, and a sale under that power, unless some special facts exist, will vest as complete a title as would a sale under foreclosure in chancery. 3 Brick. Dig. p. 656, § 332. True, the mortgagee had the option, notwithstanding the power of sale in the mortgage, to foreclose in equity. Vaughan v. Marable, 64 Ala. 60. That is not the question before us. The inquiry for us is whether or not the mortgagors took upon themselves an unqualified obligation to pay the attorney's fees in a foreclosure...