Jackson v. Prestwood
This text of 101 So. 185 (Jackson v. Prestwood) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
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.
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Cite This Page — Counsel Stack
101 So. 185, 211 Ala. 585, 1924 Ala. LEXIS 309, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-prestwood-ala-1924.