Opinion
7 Div. 210.
December 1, 1933. Rehearing Denied January 18, 1934.
Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.
McCord McCord, of Gadsden, for appellants.
The mortgage contains no direct provision that it can be foreclosed in equity. There are no averments in the bill which make foreclosure necessary in equity. The bill was subject to the demurrer. Frederick v. Hartley, 202 Ala. 43, 79 So. 381.
Frank J. Martin, of Gadsden, for appellees.
Brief did not reach the Reporter.
As stated in brief of appellants' counsel: "We desire to raise the proposition as to whether or not a mortgage, clearly showing on its face that foreclosure could be had by merely advertising the property and publicly selling the same in front of the Court House doors, could be foreclosed in the Equity Court where no certain provision to that effect is contained in the mortgage."
It has been repeatedly and continuously held by this court that equity has jurisdiction to foreclose a mortgage, notwithstanding there is a power of sale contained therein. Palmer v. Sulzby, 185 Ala. 166, 64 So. 368; Vaughan v. Marable, 64 Ala. 60; Bedell v. New England Mortgage Sec. Co., 91 Ala. 327, 8 So. 494; Eslava v. New York National Bldg. Loan Ass'n, 121 Ala. 480, 25 So. 1013; McGowan v. Branch Bank of Mobile, 7 Ala. 823.
The trial court properly overruled the appellant's demurrer to the bill of complaint, and the decree of the circuit court is affirmed.
Affirmed.
GARDNER, BOULDIN, and FOSTER, JJ., concur.