Henry v. Watson
| Citation | 109 Ala. 335,19 So. 413 |
| Parties | HENRY v. WATSON ET AL. |
| Decision Date | 30 January 1896 |
| Court | Alabama Supreme Court |
Appeal from chancery court, Covington county; Jere N. Williams Chancellor.
Bill by Mary Henry against Ezekiel Watson and others to foreclose a mortgage, and for an injunction to stay waste, in which defendants, after filing an answer, moved to dissolve the temporary injunction. From a decree granting the motion and dissolving the injunction, complainant appeals. Reversed.
Stallworth & Burnett and B. H. Lewis, for appellant.
P. N Hickman, for appellees.
The appellant, as mortgagee, filed her bill, in which was prayed an injunction to stay waste, and also for a foreclosure. At the time of the filing of the bill the law day of the mortgage had not expired. A temporary injunction issued in accordance with the prayer of the bill. The respondents answered the bill, and moved for a dissolution of the injunction upon the grounds: First, that there was no equity in the bill; and, second, upon the denials of the answer. It is not necessary to consider the first ground. After setting out the mortgage and describing the lands mortgaged by numbers, the bill avers that the lands "are wild lands with no valuable improvements thereon, and have a fine growth of large pine timber standing on them, and are valuable chiefly for said timber; *** and that said lands, after being divested of said timber, will not, at a fair sale, bring anything near the amount of complainant's debt; and that the respondent Ezekiel Watson is insolvent." The bill further avers that John Teel and W. J. Hart and others, who are unknown, "with the consent and connivance of said Ezekiel Watson, mortgagor, are now cutting, hauling, and removing the trees and timber from said above-described land" for sale and shipment, "and, unless restrained and prevented, said land will be greatly depreciated in value," etc. The answer of Ezekiel Watson, which was filed some two weeks after the filing of the bill, after fully admitting the debt and the execution of the mortgage, denies his insolvency, denies that the lands are chiefly valuable for the timber, and that the security would be insufficient for the debt. The charge of waste averred in the bill is denied in the following language: "He denies that John Teel and W. J. Hart, together with other parties unknown to oratrix, *** with the consent and connivance of said Ezekiel Watson, mortgagor, are now cutting and hauling and removing the trees and timber from said above-described land, *** to be shipped and sold," etc., "and denies that said land will be greatly depreciated in value," etc. The denials of the answer in regard to the...
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... ... denials of the allegations of the bill or independent ... defensive matter, "and also 'such affidavits as any ... party may introduce."' Henry v. Watson, 109 ... Ala. 335, 19 So. 413; Rice v. Davidson, 206 Ala ... 226, 89 So. 600; Profile Cotton Mills v. Calhoun Water ... Co., 189 Ala ... ...
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...v. State, 173 Ala. 7, 55 So. 506. But irregularity in the mode of granting an injunction may be and often is waived. Henry v. Watson, 109 Ala. 335, 19 So. 413; Woodward v. State, supra; Barnett v. State ex rel. Simpson, 235 Ala. 326, 179 So. 208, 209. In the case at bar, without objection t......
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