Skidmore v. Stewart
| Decision Date | 12 April 1917 |
| Docket Number | 8 Div. 937 |
| Citation | 199 Ala. 566,75 So. 1 |
| Parties | SKIDMORE v. STEWART. |
| Court | Alabama Supreme Court |
Appeal from Chancery Court, Morgan County; James E. Horton, Jr. Chancellor.
Bill by S.E. Stewart against Laura E. Skidmore and her husband to foreclose a mortgage. From a decree for complainant respondents appeal. Affirmed in part, and in part reversed rendered, and remanded.
The mortgage was overdue, and was given to secure a promissory note of even date, and was given on the crops, stocks, and lands. The note stipulated that the makers "shall pay all costs of collection, including a reasonable attorney's fee, if not paid at maturity." The mortgage provides for a sale under power, and a payment of the expenses of same out of the proceeds of the sale. The bill avers that, by said note and mortgage, defendant agreed to pay a reasonable attorney's fee should it become necessary that said note and mortgage be collected through an attorney, and the bill claims a fee of $250 for that purpose. The bill further avers that it was necessary to have a receiver appointed for the purpose of taking charge of and looking after the personal property mentioned in said mortgage, and for the purpose of looking after and caring for the real estate mentioned and described in said mortgage, to see that same was insured, and for the purpose of procuring a tenant for said property, and for the purpose of collecting and conserving the rents of said property for the benefit of orator. By amendment it is further alleged that complainant executed a quitclaim deed to Laura E. Skidmore, one of the respondents, on January 23, 1913, releasing and conveying to her some of the land, about 50 acres, covered by his mortgage, under the following circumstances: Several years previously complainant bought said released lands at a tax sale not knowing that they were included in his mortgage after receiving the tax deed he discovered that fact, and Mrs. Skidmore offered to refund the tax money with interest, $46.48, and complainant agreed to release any right or claim he might have under said tax deed; complainant accepted the same in full payment of any and all claims acquired by virtue of said tax deed, and for no other purpose, and thereupon executed to her a quitclaim deed, releasing and conveying all his right, title, interest, and claim in the tax deed land, without any restriction as to the title conveyed. As to this transaction, the bill alleges that it was the intention of all the parties to said deed that it was only to release and convey said interest which complainant might have acquired under and by virtue of said tax deed, and that complainant's security under said mortgage, and the conveyance of the land for that purpose, was not to be affected by said deed. Besides the general prayer, and the usual prayer for foreclosure sale, and its incidents, including a writ of possession in favor of the purchaser at the sale, it was also prayed that pending a final hearing a receiver be appointed. The demurrers raise the objection that complainant is not entitled to collect attorney's fees, there being no provision nor necessity shown therefor; that, if there was a mistake in making a quitclaim deed, it was a mistake of law and not of fact, and cannot be remedied; and that the allegations are not sufficient to authorize the appointment of a receiver.
W.T. Lowe, of Decatur, for appellants.
Sample & Kilpatrick, of Cullman, for appellee.
While the mortgage deed provides only for the expenses of a sale under the power, the note provides for an attorney's fee for its collection if it be not paid at maturity. A foreclosure suit in chancery is one of the legal methods of collection, and complainant is entitled to a reasonable allowance for his solicitor's fee in that behalf, herein incurred or expended. Stephenson v. Allison, 123 Ala. 439, 449, 26 So. 290. And, of course, the default in the payment of the secured debt sufficiently exhibits a necessity for a suit and its attendant expenses. It is to be observed that the bill does not aver a stipulation based upon a conditional necessity for foreclosure in chancery, but only for collection by an attorney. The case is therefore distinguishable from that of A.F.L.M. Co. v. McCall, 96 Ala. 200, 11 So. 288.
If this were an attempt to recover an attorney's fee...
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Henry v. Ide
... ... stated in Hayes v. Jasper Land Co., supra, is quoted with ... approval in Wright v. Wright, 180 Ala. 343, 60 So ... 931; and in Skidmore v. Stewart, 199 Ala. 566, 75 ... So. 1, the bill was for foreclosure of the mortgage and the ... prayer was for the appointment of a receiver ... ...
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Southern Surety Co. v. United States Cast Iron Pipe & F. Co.
...Walden v. Skinner, 101 U. S. 577, 583, 25 L. Ed. 963; Hunt v. Rousmanier's Adm'rs, 21 U. S. (8 Wheat.) 174, 5 L. Ed. 589; Skidmore v. Stewart, 199 Ala. 566, 75 So. 1; Bailey v. Lisle Mfg. Co. (C. C. A. 8) 238 F. 257, 152 C. C. A. 3; Teig v. Linster, 150 Minn. 111, 184 N. W. 609; Marine Savi......
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... ... Affirmed ... [172 So. 647] ... Wm. C ... Rayburn, of Guntersville, and James & Stewart, of Cullman, ... for appellant ... St ... John & St. John, of Cullman, for appellee ... KNIGHT, ... The ... bill ... agreement. In these circumstances, the mortgagee was entitled ... to the allowance. Skidmore v. Stewart, 199 Ala. 566, ... 75 So. 1; Stephenson v. Allison, 123 Ala. 439, 26 ... So. 290; Blevins et al. v. Tilford, 203 Ala. 235, 82 ... ...
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Beasley v. Ross
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