Worth v. Knickerbocker Trust Co.
| Decision Date | 13 April 1911 |
| Citation | 55 So. 144,171 Ala. 621 |
| Parties | WORTH ET AL. v. KNICKERBOCKER TRUST CO. |
| Court | Alabama Supreme Court |
Rehearing Denied April 27, 1911.
Appeal from Chancery Court, Clay County; W. W. Whiteside, Chancellor.
Suit by the Knickerbocker Trust Company against George W. Worth and others. From a decree for complainant, defendants appeal. Affirmed.
Walter S. Smith, for appellants.
Tillman, Bradley & Morrow, for appellee.
The bill in this case was filed by the appellee to foreclose a certain mortgage executed by the appellant to Ira L. McCord. The respondents demurred to the bill, assigning a number of grounds, none of which appear to contain any merit.
It was not necessary for the bill in this case to aver in terms that the note secured by the mortgage sought to be foreclosed was actually delivered by the mortgagors to the mortgagees, and duly and properly assigned to the complainant. This specific averment of delivery was not essential. The bill sufficiently alleged the amount due upon the note secured by the mortgage, which was sought to be foreclosed.
While the bill showed that complainant was a foreign corporation, it did not allege that it had ever done, or was now doing, any business in the state of Alabama, in such sense as is contemplated in the constitutional and statutory provisions fixing the duties required of foreign corporations before doing business in this state. The only act of the complainant, past, present, and future, shown by the bill to have been done or contemplated, was the filing of this bill to foreclose the mortgage executed by the respondents, not to this foreign corporation, but to an individual, and which mortgage, the record shows, was transferred and assigned to such corporation in the state of New York.
There is nothing in the bill or the exhibits to show that the property mortgaged, as to which the mortgage is sought to be foreclosed, was the homestead of the respondents or of any one else; consequently there was no necessity for the homestead acknowledgment as to such mortgage.
There is absolutely no merit in any of the grounds of the demurrer interposed, and the chancellor properly overruled the demurrer.
Affirmed.
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... ... So. 806; Woodall & Sons v. People's National ... Bank, 153 Ala. 576, 45 So. 194, Worth v ... Knickerbocker Trust Co., 171 Ala. 621, 55 So. 144; 2 ... Mor. Corp. § 662; Charter Oak ... ...
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