Wilson v. Crocker

• Decision Date: 19 December 1957
• Docket Number: 5 Div. 683
• Citation: 267 Ala. 26,99 So.2d 190
• Parties: J. P. WILSON et ux. v. Flossie Wilson CROCKER.
• Court: Alabama Supreme Court

Page 190

99 So.2d 190

267 Ala. 26

J. P. WILSON et ux. v. Flossie Wilson CROCKER.

5 Div. 683.

Supreme Court of Alabama.

Dec. 19, 1957.

Omar L. Reynolds and Reynolds & Reynolds, Clanton, for appellants.

Speaks & Burnett, Clanton, for appellee.

MERRILL, Justice.

This appeal is from a decree overruling demurrer to an amended bill of complaint seeking to foreclose a mortgage. The only point argued here is that the lower court erred in overruling the demurrer to that aspect of the bill seeking attorney's fees.

The demurrer went to that aspect of the bill seeking attorney's fees, but the decree adjudged 'that the demurrer of defendants be and the same is hereby overruled and the defendants are given 20 days in which to answer, if advised to do so.' The decree of the court was general. There was no ruling on the demurrers to the aspects. Such a decree constitutes only a ruling on the demurrer to the bill as a whole and we consider only grounds going to the bill as a whole which are argued in brief for appellants. Davis v. Davis, 263 Ala. 42, 81 So.2d 314; Williamson v. Burks, 262 Ala. 422, 79 So.2d 42.

Since the only grounds of demurrer argued are those going to the aspect of the attorney's fees, we must affirm the decree of the lower court.

However, only one point is argued, and we can settle it now rather than on a later appeal, and, with that in mind, we proceed to express our views on the single question presented in the argument.

The bill avers that no payments were made on the note or the mortgage which secured the indebtedness. Paragraph (7) of the amended bill reads:

'(7) Complainant avers that the note or mortgage referred to herein, copies of which are attached to this bill of complaint, provide for a reasonable attorney's fee for their collection, which complainant hereby claims.'

The general rule is that where the mortgage merely provides that the mortgagee may sell the premises at public outcry, and from the proceeds pay all the costs of foreclosure, including an attorney's fee, no attorney's fee can be recovered in a suit in equity to foreclose; it being held that the provision thereof is confined to the sale made 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 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, 123 So. 18; Hylton v. Cathey, 225 Ala. 605, 144 So. 579.

Appellants contend that the general rule applies to the instant case and cites Tompkins v. Drennen, 95 Ala. 463, 10 So. 638, and Perry v. Seals, 186 Ala. 514, 65 So. 151, for the proposition that 'the fact that the secured notes provides for attorney's fees for their collection would not justify the allowance of attorney's fees for the foreclosure of the mortgage in equity if the mortgage does not provide for such fees.'

Appellee cites only one case, that of Skidmore v. Stewart, 199 Ala. 566, 75 So. 1, 2, where it was said:

'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 American Freehold Land Mortgage Co. of London v. McCall, 96 Ala. 200, 11 So. 288.

'If this were an attempt to recover an attorney's fee incidental to a foreclosure under the power in the mortgage, it would be denied, because the mortgage makes no provision therefor, and the provision in the note does not relate to an ex parte proceeding for the mere subjection of the security to the debt. Tompkins v. Drennen, 95 Ala. 463, 465, 10 So. 638; Perry v. Seals. 186 Ala. 514, 65 So. 151...