Tucker v. Pilcher

75 So. 171, 199 Ala. 609, 1917 Ala. LEXIS 246

Opinion

GARDNER, J.

(1) The foregoing statement discloses that the complainant in the court below sought a foreclosure of an equitable mortgage on certain personal property — six bales of cotton — under the decree of the chancery court, so as to subject a sufficiency of the proceeds of this sale to the payment of the indebtedness for the security of which the mortgage was given. That for such purpose the bill is properly filed we think quite clear.—Hamilton v. Clancy, 196 Ala. 194, 72 South. 15; Humes v. Scott, 130 Ala. 281, 30 South. 788.

(2) The bill also seeks a personal decree against respondent Tucker, the mortgagor, in the event of the insufficiency of the proceeds of the sale of the cotton to satisfy the mortgage indebtedness. The mortgagor was therefore a property party to the suit.—Lyon v. Powell, 78 Ala. 351; 2 Jones on Mort. (4th Ed.) § 1402; 7 Cyc. 98; Cooper v. Johnson (C. C.), 157 Fed. 104, cited in Hamilton v. Clancy, supra.

The above are the only two questions presented by the assignments of demurrer interposed by respondent Tucker, who alone assigns error here, and there is clearly nothing in this record of which respondent can complain. The decree is therefore affirmed.

Affirmed.

Anderson, C. J., and McClellan and Sayre, JJ., concur.