Jackson v. Prestwood

101 So. 185, 211 Ala. 585, 1924 Ala. LEXIS 309

Opinion

ANDERSON, O. J.

The original bill was by the mortgagor to enjoin a sale of the property under the mortgage, sought an accounting and the payment of the mortgage debt. Respondent answered and sought by cross-bill affirmative relief; that is, the foreclosure of the mortgage. A cross-bill, or answer in the nature of a cross-bill, was essential to a foreclosure and which could not he decreed without same. Bedell v. New Eng. Mtg. Secty. Co., 91 Ala. 325, 8 South. 494; Ketchum v. Creagh, 53 Ala. 224; Davis v. Cook, 65 Ala. 617.

The fact that a mortgage contains a power of sale does not deprive an equity court of jurisdiction of an action to foreclose, and the mortgagee may file a cross-bill to foreclose when the original bill seeks an injunction and cancellation. Vaughan v. Marable, 64 Ala. 60. The mortgage expressly provides for an attorney’s fee for a foreclosure in equity.

The trial court did not err in overruling the appellants’ demurrer to the cross-bill, and the decree of the circuit court is affirmed.

Affirmed.

SOMERVILLE, THOMAS, and BOULD1N, JJ., concur.