Reeres & Co. v. Brown

103 Ala. 537

• Court: Supreme Court of Alabama
• Decided: November 15, 1893
• Status: Published

Opinion

HARALSON, J.

1. When a bill is filed for the foreclosure of a mortgage on real estate, which is situated in one county, and the mortgagor resides in another, under section 3421 of the Code, the chancery court of either district or county — the one where the mortgagor resides, or the one where the real estate or a material portion thereof is situated — has jurisdiction, and the complainant may elect, at his pleasure, in which of the two districts or counties he will file his bill. — Ashurst v. Gibson, 57 Ala. 586; Harwell v. Lehman, 72 Ala. 345.

2. There is nothing in Bolling v. Munchus, 65 Ala. 558, as the learned chancellor seemed to suppose, which conflicts with the construction given this statute in the cases above cited. In that case, the mortgagor of the land the bill was filed to foreclose was a non-resident, in which case, the statute itself provides, that the bill must be filed ‘ ‘in the district where the subject of the suit, or any portion of the same, is when the cause of action arose, or the act on which the suit was founded was to be performed.”

The court below erred in sustaining the demurrer to the bill.

Reversed and remanded.