Cooper v. Parker

CourtSupreme Court of Alabama
Writing for the CourtSOMERVILLE, J.
PartiesCOOPER ET AL. v. PARKER.
Decision Date18 January 1912

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...

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12 practice notes
  • Bay Minette Land Co. v. Stapleton, 1 Div. 685.
    • United States
    • Supreme Court of Alabama
    • January 21, 1932
    ...matter has been frequently considered by this court. Anniston Banking & Loan Co. v. Lapsley, 200 Ala. 377, 76 So. 293; Cooper v. Parker, 176 Ala. 122, 57 So. 472; Kelly v. Carmichael, 221 Ala. 371, 373, 129 So. 81. And the required pleading and proof was adverted to in Dudley et al. v. Colo......
  • Hylton v. Cathey, 2 Div. 2.
    • United States
    • Alabama Supreme Court
    • November 25, 1932
    ...made in exercise of the power. Bynum v. Frederick, 81 Ala. 489, 8 So. 198; Tompkins v. Drennen, 95 Ala. 463, 10 So. 638; Cooper v. Parker, 176 Ala. 122, 57 So. 472; Seed v. Brown, 180 Ala. 8, 60 So. 98; O'Neal v. Lovett, 197 Ala. 628, 73 So. 329; Thomas, Supt. of Banks, v. Barnes, 219 Ala. ......
  • Wilson v. Crocker, 5 Div. 683
    • United States
    • Supreme Court of Alabama
    • December 19, 1957
    ...in the exercise of the power. Bynum v. Frederick, 81 Ala. 489, 8 So. 198; Tompkins v. Drennen, 95 Ala. 463, 10 So. 638; Cooper v. Parker, 176 Ala. 122, 57 [267 Ala. 28] So. 472; Seed v. Brown, 180 Ala. 8, 60 So. 98; O'Neal v. Lovett, 197 Ala. 628, 73 So. 329; Thomas v. Barnes, 219 Ala. 652,......
  • Pritchett v. Dixon, 6 Div. 696.
    • United States
    • Supreme Court of Alabama
    • March 12, 1931
    ...from the fact that the provisions in the mortgage for attorney's fee were for a foreclosure under the power of sale (Cooper v. Parker, 176 Ala. 122, 57 So. 472), no necessity existed for a foreclosure of the mortgage effecting a sale of the property, in advance of, and independent of, a dec......
  • Request a trial to view additional results
12 cases
  • Bay Minette Land Co. v. Stapleton, 1 Div. 685.
    • United States
    • Supreme Court of Alabama
    • January 21, 1932
    ...matter has been frequently considered by this court. Anniston Banking & Loan Co. v. Lapsley, 200 Ala. 377, 76 So. 293; Cooper v. Parker, 176 Ala. 122, 57 So. 472; Kelly v. Carmichael, 221 Ala. 371, 373, 129 So. 81. And the required pleading and proof was adverted to in Dudley et al. v. Colo......
  • Hylton v. Cathey, 2 Div. 2.
    • United States
    • Alabama Supreme Court
    • November 25, 1932
    ...made in exercise of the power. Bynum v. Frederick, 81 Ala. 489, 8 So. 198; Tompkins v. Drennen, 95 Ala. 463, 10 So. 638; Cooper v. Parker, 176 Ala. 122, 57 So. 472; Seed v. Brown, 180 Ala. 8, 60 So. 98; O'Neal v. Lovett, 197 Ala. 628, 73 So. 329; Thomas, Supt. of Banks, v. Barnes, 219 Ala. ......
  • Wilson v. Crocker, 5 Div. 683
    • United States
    • Supreme Court of Alabama
    • December 19, 1957
    ...in the exercise of the power. Bynum v. Frederick, 81 Ala. 489, 8 So. 198; Tompkins v. Drennen, 95 Ala. 463, 10 So. 638; Cooper v. Parker, 176 Ala. 122, 57 [267 Ala. 28] So. 472; Seed v. Brown, 180 Ala. 8, 60 So. 98; O'Neal v. Lovett, 197 Ala. 628, 73 So. 329; Thomas v. Barnes, 219 Ala. 652,......
  • Pritchett v. Dixon, 6 Div. 696.
    • United States
    • Supreme Court of Alabama
    • March 12, 1931
    ...from the fact that the provisions in the mortgage for attorney's fee were for a foreclosure under the power of sale (Cooper v. Parker, 176 Ala. 122, 57 So. 472), no necessity existed for a foreclosure of the mortgage effecting a sale of the property, in advance of, and independent of, a dec......
  • Request a trial to view additional results

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