Bynum v. Frederick , 81 Ala. 489 ( 1886 )

STONE, C. J.

— The fourth ground of demurrer to the original bill ought to have been sustained. A married woman, not relieved of the disabilities of coverture, can not sue alone in a chancery court. — Sawyers v. Baker, 72 Ala. 49 ; Sims v. National Commercial Bank, 73 Ala. 248 ; Skinner v. Chapman, 78 Ala. 376.

There is nothing in the main question relied on in defense. The husband was entitled to the wife’s earnings; and the payment for the lot, made with the wife’s earnings, must be treated as a payment made by the husband, so far as the rights of the mortgagee, or other creditors of the husband are concerned. — Shaeffer v. Sheppard, 54 Ala. 244 ; Carleton v. Rivers, ib. 467; Glaze v. Blake, 56 Ala. 379; McLemore v. Pinkston, 31 Ala. 266.

The mortgage contains this clause : “ But, if default be made in payment of either, [two notes described in the mortgage, and secured by it], then said Mrs. Penelope Frederick, her heirs or assigns, are hereby authorized to sell said lot at public outcry, after giving five days written notice, posted at door of court house in Lee county, Alabama. From proceeds pay all costs of foreclosure, including attorney’s fee, and said secured notes, and account to us for balance.” Under this clause the chancellor referred it to the register to ascertain and report a reasonable fee to complainant’s solicitor for prosecuting this foreclosure suit. The report was made and confirmed, and the chancellor decreed its payment out of the mortgage fund.

A provision in a mortgage to secure and pay the expenses of foreclosure, including a reasonable attorney’s fee, may be enforced. — 1 Jones on Mort., § 635; 2 ib. 1606. There can be no question that if the foreclosure in this case had been ' effected by advertisement and sale under the power contained in the mortgage, it would have been proper to charge on the fund a reasonable fee to counsel for superintending the sale, and perfecting the conveyance. Such charge would have been within the very letter of the contract. There was no attempt, however, to sell under the power contained in the mortgage; but the complainant seeks by bill to foreclose in the chancery court. Does the fee charged for this service fall within the terms of the mortgage? We think not.

It is not intended to decide that such charge could not be recovered, if the mortgage had made provision for it. All we decide is, that the mortgage in the present case is not comprehensive or specific enough to embrace it. The attorney’s fee it provides for, is a reasonable fee to counsel, for perfecting such foreclosure as the mortgage by its express terms authorizes.

Beversed and remanded.