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185 Ala. 166

Palmer v. Sulzby

Supreme Court of Alabama

Decided January 13, 1914

Supreme Court of Alabama · decided 1914-01-13

Heard before Hon. A. H. Benners. Bill by James F. Sulzby against Mrs. Palmer to foreclose a mortgage. From a decree overruling demurrers to the bill, respondent appeals. The bill was insufficient in its statement of fact to show a consideration and its nature for the mortgage sought to be foreclosed, and failed to show a necessity for a foreclosure as the mortgage' contained a power of sale. — Sec. 3094, Code 1907, and cases cited.

Cited by 4 later decisions — most recently June 1955

4 state decisions

Relies on Vaughan v. Marable · McGowan v. Branch Bank at Mobile · Hunley v. Willis Lang & Co.

Good law ✅— No negative treatment on recordhow we know

Affirmed · Decided 1914-01-13

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SAYRE, J.

¶1Bill to foreclose a mortgage averring that defendant was indebted by promissory notes executed by defendant and secured by the mortgage. . Defendant demurred to the bill on the ground that it should contain specifications as to the origin of the debt and the nature of the consideration for which the notes were given. Our judgment is that the averments of the bill in this respect were sufficient. The notes imported a consideration, and that was enough. — Hunley v. Lang, 5 Port. 157.

¶2Defendant also demurred to the bill because complainant had ample remedy under the power of sale in the mortgage. All the authorities concur that the jurisdiction of equity exists as well where there is. a power to sell as where there is none. — McGowan v. Branch Bank of Mobile, 7 Ala. 828; Vaughan v. Marable, 64 Ala. 67.

¶3There was no error in the ruling on demurrer.

¶4Affirmed.

Anderson, McClellan, and Somerville, JJ., concur. •
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