Roberts v. Ferguson

147 So. 894, 226 Ala. 594, 1933 Ala. LEXIS 402

• Court: Supreme Court of Alabama
• Decided: April 13, 1933
• Docket: 8 Div. 474.
• Status: Published

Opinion

GARDNER, Justice.

The bill is for the foreclosure of a mortgage on real estate and deficiency decree over against defendants S. S. and Mary Roberts.

As to the foreclosure feature, the sufficiency of the bill is clear and is not challenged by any assignments of demurrer. Stuckey v. Murphy, post, p. 700, 145 So. 914; Rountree v. Satterfield, 211 Ala. 464, 100 So. 751.

The demurrers separately interposed by S. S. Roberts and Mary Roberts are properly to be construed under the cases of National Union Fire Ins. Co. v. Lasseter, 224 Ala. 649, 141 So. 645, 646, Wood v. Estes, 224 Ala. 140, 139 So. 331, Hall v. Metropolitan Life Ins. Co., 225 Ala. 455, 143 So. 452, and authorities therein cited, as addressed to the bill as a whole, and are to be so considered here.

As above stated, the bill as a whole had unquestioned equity, and under Oden v. King, 216 Ala. 504, 113 So. 609, 54 A. L. R. 1413, the chancellor presumably, for the reason given, did not pass upon the partial demurrers. The questions argued, therefore, as to that aspect of. the bill seeking a deficiency decree, are not here presented for consideration. Wood v. Estes, supra.

It follows that the decree is due to be affirmed.

Affirmed.

• ANDERSON, C. J., and BOULDIN and FOSTER, JJ„ concur.