Cooper v. Parker

• Decision Date: 18 January 1912
• Citation: 176 Ala. 122,57 So. 472
• Parties: COOPER ET AL. v. PARKER.
• Court: Alabama Supreme Court

57 So. 472

176 Ala. 122

COOPER ET AL. v. PARKER.

Supreme Court of Alabama

January 18, 1912

Appeal from Chancery Court, Coosa County; W. W. Whiteside Chancellor.

Bill by James M. Parker against R. M. Cooper and others. From a decree for complainant, defendants appeal. Modified and affirmed.

The consideration clause of the mortgage is as follows: "And we, or either of us, agree to pay to the said James M Parker, for any and all advances, in addition to the above amount of money, the said James M. Parker may make to us during the year 1907. And we hereby certify that said sum of money has been obtained by us, and such contract for future advances has been made by us, bona fide for the purpose of making a crop during the year 1907, and that without such advances and such contract for future advances, it would not be in our power to procure the necessary teams, provisions and farming implements with which to make a crop during the year 1907. And as far as this debt is concerned, and in consideration thereof, we jointly and severally expressly waive [here follows waiver of exemption]." The clause relating to foreclosure is in part as follows: "But should said sum and said additional future advances not be paid when due, the said James M. Parker, his heirs, representatives, or assigns, shall have the right to take possession of said property herein conveyed, and he is hereby authorized to sell the same, both real and personal, at auction before the courthouse door of Elmore county, Alabama, to the highest bidder for cash, by giving ten days' notice in writing of the time, place, and terms of sale of same, by posting one of said written notices at the courthouse door and three other public places in Elmore county. [ [Here follows authority to bid and to buy by the said Parker at such sale, together with authority to invest the purchaser or purchasers with the complete title.] And the proceeds of such sale to said Parker, his heirs or assigns, shall apply to the expenses of the same, and to the payment of said sum of $330, and to the payment of such additional sum of money as the said James M. Parker may have advanced to us, or either of us, during the year 1907, with the interest thereon, together with reasonable attorney's fees for foreclosing this mortgage, and the balance, if any, shall be paid to our heirs or assigns."

George A. Sorrell, for appellants.

Felix L. Smith, for appellee.

SOMERVILLE J.

This appeal is from a final decree of the chancery court for the foreclosure of a mortgage on land executed by appellants to appellee.

Error is imputed to the decree in three particulars: (1) Because of a variance between the allegations of the bill and the proof; the bill alleging that the security was given for a then existing debt due from the mortgagors to the mortgagee, when in fact it was given to indemnify the mortgagee against any loss that he might sustain by reason of his signing a note as security for R. M. Cooper, one of the mortgagors. (2) Because, when the bill to foreclose was filed by the mortgagee, he had not then paid the security debt, had suffered no loss, and was not entitled to enforce the security. (3) Because there was no stipulation in the mortgage authorizing the allowance of an attorney's fee for foreclosing the mortgage by bill in chancery; a fee of $50 being allowed by the chancellor in that behalf.

1. The mortgage contract, which is made an exhibit to the bill of complaint, recites an indebtedness of $330 due from the mortgagors to the mortgagee for money advanced by him to them to make a crop, for which the note was given. The bill of complaint declares upon the mortgage and note according to their prima facie import and effect, and just as the parties themselves saw fit...