Tompkins v. Drennan

• Decision Date: 07 January 1892
• Citation: 10 So. 638,95 Ala. 463
• Parties: TOMPKINS v. DRENNAN.
• Court: Alabama Supreme Court

10 So. 638

95 Ala. 463

TOMPKINS v. DRENNAN.

Supreme Court of Alabama

January 7, 1892

Appeal from circuit court, Jefferson county; JAMES B. HEAD, Judge.

Action by D. M. Drennan against H. B. Tompkins for $3,000, being the amount realized by defendant from a sale of property under mortgage, in excess of the mortgage debt and expenses. Judgment for plaintiff. Defendant appeals. Affirmed.

Roquemore, White & McKenzie, R. H. Pearson, and Jackson E. Long, for appellant.

Gillespy & Smyer and Webb & Tillman, for appellee.

WALKER J.

The appellant, who was the defendant below, sold certain land in the city of Birmingham under a power of sale in a mortgage which had been made to secure two promissory notes payable to himself. The principal and interest due on the notes at the date of the sale amounted to $29,013.31. The mortgaged property was sold for the sum of $32,000. Out of this sum the defendant retained the amount of the principal and accrued interest on the notes, the amounts of the advertising and auction fees, and also the sum of $2,901.33 as attorney's fees. The claim of the plaintiff is based upon his alleged right to the sum retained by the defendant as attorney's fees. The uncontroverted evidence shows that, before the advertisement and sale by the defendant under the power in the mortgage, the mortgagors had sold the property covered by the mortgage, and all their interest therein, to the plaintiff, and had executed a deed to him. The plaintiff, as the grantee of the mortgagors, and as the owner of the equity of redemption in the mortgaged property, is entitled to recover, in an action for money had and received, the surplus of the proceeds of sale remaining in the hands of the mortgagee, after deducting the amounts which, by the terms of the power of sale, were authorized to be applied to the payment of the secured debt and interest thereon, and of such expenses and charges incident to the execution of the power as are provided for therein. Webster v. Singley, 53 Ala. 208; Cook v Basley, 123 Mass. 396; Buttrick v. Wentworth, 6 Allen, 79; 2 Jones, Mortg. § 1940. The question, then, is as to the right of the defendant to the sum retained by him as attorney's fees.

There is one provision in the mortgage itself for the payment of attorney's fees, and another and different provision on the same subject in the notes which were secured by the mortgage. The mortgage confers upon the mortgagee a power to sell the property for cash, and to devote the proceeds of the sale "to the paying, first, the expenses of advertising and selling and all attorney's or solicitor's fees." This is the extent of the provision in the mortgage on the subject. A clause in the following words is found in each of the notes: "It is further agreed that the undersigned shall pay all costs for collecting the above not less than ten per cent., on failure to pay at maturity." The two provisions are separate and distinct, without any reference in the one to the other. There is an independent field of operation for each of them. A creditor whose demands is evidenced by the debtor's personal obligation, which is secured by a mortgage upon land, has the choice of foreclosing the mortgage upon the breach of the condition thereof, or of proceeding against the debtor without regard to the mortgage security. If either of the two resources may be exhausted without satisfying the demand, resort may be had to the other. Until the demand is satisfied, the creditor may seek at the same time, but by separate and independent proceedings, both the...