Bibb v. Crews , 113 Ala. 617 ( 1896 )

McCLELLAN, J.

The demurrer to the bill does not appear to have been acted on. Whether the bill has equity or not we do not consider or decide since it is not necessary in the view we take of the evidence. The testimony has been fully considered by each member of the court, and upon it we reach the conclusion that the averments of the bill have not been sustained by the proof.

There is no merit in the suggestion that the bill has equity, -which the evidence establishes, aside from the main question of release vd non, for the injunction of the sale respondents are about to make under the power to that end contained in the mortgage, because of the fact that the mortgage has been lost. We are unable to conceive how the loss or destruction of the primary evidence of a right can destroy the right itself, or that the enforcement of an unquestioned right can become inequitable merely because the original writing conferring the right has been lost. And especially is the contention without just foundation, where, as in this case, the right is to sell property under a mortgage and, though the original is lost, there is a record of it, a certified copy of which supplies all the evidence of the power which the original could have afforded.

The decree of the city court is affirmed.