Jones v. White

• Decision Date: 16 June 1896
• Parties: JONES v. WHITE.
• Court: Alabama Supreme Court

20 So. 527

112 Ala. 449

JONES v. WHITE.

Supreme Court of Alabama

June 16, 1896

Appeal from chancery court, Walker county; Thomas Cobbs, Chancellor.

Bill by J. B. Jones against Jourd White to enjoin the foreclosure of a mortgage. From a decree overruling complainant's exceptions to the register's report, dissolving the preliminary injunction, and ordering the land sold for payment of the amount due on the mortgage debt, complainant appeals. Affirmed.

The bill in this case was filed on January 29, 1894, by the appellant, J. B. Jones, against the appellee, Jourd White, to have enjoined the foreclosure of a mortgage on land by sale under the power contained therein, on the ground that the mortgagor, who was complainant in the bill, had paid the mortgage debt in full. On the filing of the bill a temporary injunction was granted. The defendant answered the bill denying payment of the mortgage debt, and upon hearing of the cause the court rendered a decree ordering the register to hold the reference in order to ascertain and report the amount due on the mortgage debt. The register held the reference so ordered, and reported that there was nothing due on the mortgage debt. On the making of this report the parties, by their solicitors, entered into a written agreement on October 25, 1894, that the case be submitted upon final decree upon said report, and the pleadings and the proof as noted by the register. On the same day, to wit October 25, 1894, the chancellor, ex mero motu, rendered a decree setting aside said report, and ordering another reference to the register, in order that he might report the amount due on the mortgage debt. The register proceeded to hold this reference, and made his report thereon, in which he stated that there was a balance due from the complainat to the defendant. The complainant filed exceptions to this report, and on the submission of the cause the chancellor rendered a final decree overruling the complainant's exceptions, confirming the report of the register, dissolving the preliminary injunction, and ordered the lands sold for the payment of the balance ascertained to be due from the complainant to the defendant on the mortgage debt. The complainant appeals, and assigns as error the decree of the chancellor setting aside the first report of the register and the final decree.

Appling & McGuire, for appellant.

W. H Smith, Jr., and J. B. Sanford, for appellee.

MCCLELLAN,...