Summary
In Hazlewood v. Walker, 211 Ala. 634, 101 So. 450, the mortgage expressly provided for an attorney's fee for foreclosing the mortgage in equity.
Summary of this case from Thomas v. BarnesOpinion
7 Div. 492.
June 20, 1924. Rehearing Denied October 16, 1924.
Appeal from Circuit Court, St. Clair County; O. A. Steele, Judge.
J. S. McLendon, of Birmingham, for appellant.
The bill has equity, since usury cannot be asserted after valid foreclosure. Jones v. Meriwether, 203 Ala. 155, 82 So. 185; Gardner v. Ruffner, 206 Ala. 666, 91 So. 580. The allowance of an attorney's fee was improper. O'Neal v. Lavett, 197 Ala. 628, 73 So. 329; Bynum v. Frederick, 81 Ala. 489, 8 So. 198; Seed v. Brown, 180 Ala. 8, 60 So. 98; Lampkin v Irwin, 202 Ala. 14, 79 So. 300; Compton v. Collins, 197 Ala. 642, 73 So. 334.
M. M. Smith, of Pell City, for appellee.
If the bill was wanting in equity, the temporary injunction was properly dissolved. Chambers v. Ala. Iron Co., 67 Ala. 353; Nat. Fertz. Co. v. Hinson, 103 Ala. 532, 15 So. 844. Counsel argues other questions, but without citing additional authorities.
We concur in the conclusion of the trial court that the mortgage debt was not usurious and in the dismissal of the original bill of complaint.
It is urged that the decree awarding the respondent relief under her cross-bill and directing a foreclosure of her mortgage is void because it does not describe the property. The decree directs a foreclosure of the mortgage which was not only made an exhibit to the bill but was introduced in evidence and which accurately describes the property, and the decree was, of course, referable thereto. True, the original bill was dismissed upon final hearing, but this did not eliminate the same from the file or record of the cause so as to prevent the decree on the cross-bill from being referable thereto.
It is next insisted that the answer was not so verified as to authorize a dissolution of the injunction under chancery rule 32. It is sufficient to suggest that, whether the answer was or was not sufficiently verified, the injunction was not dissolved upon the answer alone, but only after proof was taken and the conclusion of the court upon final hearing that there was no equity in the bill.
As to the allowance of attorney's fees for a foreclosure of the mortgage in equity the mortgage expressly provides that for a foreclosure of same in chancery the fee was to become a part of the debt.
The decree of the circuit court is affirmed.
Affirmed.
SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.