National Building & Loan Ass'n v. Cheatham

DOWDELL, J. The appeal in this ease is prosecuted from the decree of the court, on demurrer to the bill. The first four grounds of the demurrer are addressed to- the bill as a whole, and were overruled by the court. The grounds numbered from five to sixteen, both inclusive, arei addressed to parts of the bill, and are, therefore, to be regarded and treated as separate dernuirrers. Of these, those numbered five, six, seven and twelve, were sustained, and the remaining ones- overruled. Of these latter, all, except the 16th, set up only matter embraced in those sustained, and consequently the. respondent got the full benefit of what was imperfectly attempted to be set up by them. The 16th is vague and indefinite. It does not designate with that degree of certainty necessary in a demurrer to a particular part of the bill, but leaves the court to perform a labor, which the pleader seems unwilling to undertake. The bill as amended is one for redemption and an accounting. The bill avers, among other things, that the respondent mortgagee is claiming a “withdrawal fee” of forty dollars, and an attorney’s fee of four hundred dollars, and is proceeding to foreclose- for said claims, under the power given in the mortgage, when in fact the. complainants do' not owe these amounts, and the same,, are not secured by the mortgage. The complainants submit themselves to the jurisdiction of the court, and offer to pay whatever amount is ascertained to be due from them on an accounting upon • the mortgage debt to the respondent. We, think it- quite clear, that on these allegations, the bill as one to redeem, contains equity and is not open to the demurrer. While the mortgage Avhich is made an exhibit to the bill shows that an attorney’s fee is provided for in the contract, in the event of a, foreclosure under the power, when such fee is in fact paid by the mortgagee, or when it [401] may have become a liability, yet it is averred in the bill that respondent has never become liable for the: attorney’s fee of four hundred dollars which is claimed of the complainants. The charge in the bill is, in substance, that the attorney’s fee, which is claimed by the respondent depended upon a. contingency, and that the contingency has never happened. It is of no consequence, that a foreclosure under the power contained in the mortgage has been had since the filing of the bill.' The equity of redemption and the right of its enforcement by bill in chancery und«r the facts alleged, existed at the date of the filing of the bill, and this being true, it is not within the power of the mortgagee to impair such right, by any subsequent act of foreclosure under the power contained in the mortgage. The court having acquired jurisdiction for the purpose of an accounting and redemption, will set aside any subsequent, sale made under the power, by the mortgagee, Avhen necessary to accomplish that for Avhioli jurisdiction has been assumed. The. court properly ruled on the demurrers to the bill, and its decree will be affirmed. Affirmed.