Worth v. Knickerbocker Trust Co. , 171 Ala. 621 ( 1911 )

MAYFIELD, J.

The bill Í21 tbis case was filed by tbe appellee to foreclose a certain mortgage executed by the appellant to Ira L. McCord. Tbe respondents demurred to tbe bill, assigning a number of grounds, none of wbicb appear to contain any merit.

It was not necessary for tbe bill in tbis case to aver in terms that tbe note secured by tbe mortgage sought to be foreclosed was actually delivered by tbe mortgagors to tbe mortgagees, and duly and properly assigned to tbe complainant. Tbis specific averment of delivery Avas not essential. Tbe bill sufficiently alleged tbe ainount due upon tbe note secured by the mortgage, wbicb Avas sought to be foreclosed. While the bill showed that complainant Avas a foreign corporation, it did not allege that it had ever done, or was noAV doing business in tbe state of Alabama, in such sense as is contemplated in the constitutional and statutory provisions fixing tbe duties required of' foreign corporations before doing business in tbis state. The only act of tbe C02nplainant, past, present, and future, shown by the bill to have been done or .contemplated Avas tbe filing of this bill to foreclose tbe mortgage executed by tbe respondents, not to tbis foreign corporation, but to an individual, and which mortgage, tbe record shows, Avas transferred and assigned to such corporation in the state of Nóav York.

There is nothing in tbe bill or tbe exhibits to sIioav that tbe property mortgaged, as to Avhich tbe mortgage is sought to be foreclosed, was tbe li02nestead of tbe respondents or of any one else; consequently there Avas no necessity for tbe homestead acknowledgment as to such mortgage.

There is absolutely no 2nerit in any of tbe grounds of the demurrer interposed, and the- chancellor properly overruled the demurrer.

Affirmed.

Siaipson, McClellan, and S'omerville, JJ., concur.