This appeal is from a decree overruling demurrer to an amended bill of complaint seeking to foreclose a mortgage. The only point argued here is that the lower court erred in overruling the demurrer to that aspect of the bill seeking attorney's fees.
The demurrer went to that aspect of the bill seeking attorney's fees, but the decree adjudged "that the demurrer of defendants
Since the only grounds of demurrer argued are those going to the aspect of the attorney's fees, we must affirm the decree of the lower court.
However, only one point is argued, and we can settle it now rather than on a later appeal, and, with that in mind, we proceed to express our views on the single question presented in the argument.
The bill avers that no payments were made on the note or the mortgage which secured the indebtedness. Paragraph (7) of the amended bill reads:
The general rule is that where the mortgage merely provides that the mortgagee may sell the premises at public outcry, and from the proceeds pay all the costs of foreclosure, including an attorney's fee, no attorney's fee can be recovered in a suit in equity to foreclose; it being held that the provision thereof is confined to the sale made in the exercise of the power. Bynum v. Frederick, 81 Ala. 489, 8 So. 198; Tompkins v. Drennen, 95 Ala. 463, 10 So. 638; Cooper v. Parker, 176 Ala. 122, 57 So. 472; Seed v. Brown, 180 Ala. 8, 60 So. 98; O'Neal v. Lovett, 197 Ala. 628, 73 So. 329; Thomas v. Barnes, 219 Ala. 652, 123 So. 18; Hylton v. Cathey, 225 Ala. 605, 144 So. 579.
Appellants contend that the general rule applies to the instant case and cites Tompkins v. Drennen, 95 Ala. 463, 10 So. 638, and Perry v. Seals, 186 Ala. 514, 65 So. 151, for the proposition that "the fact that the secured notes provides for attorney's fees for their collection would not justify the allowance of attorney's fees for the foreclosure of the mortgage in equity if the mortgage does not provide for such fees."
Appellee cites only one case, that of Skidmore v. Stewart, 199 Ala. 566, 75 So. 1, 2, where it was said:
It is a settled principle that the foreclosure of a mortgage on lands, after default, is per se a matter of equitable jurisdiction and presents a case of original independent equity. Evans v. Leeth Nat. Bank, 245 Ala. 433, 17 So.2d 161.
While the opinion in the Skidmore case does not clearly distinguish it from Tompkins v. Drennen and Perry v. Seals, supra, we think we have mentioned some of the distinguishing features. We, therefore, hold that the general rule and the rule of the Tompkins case and the Perry case, as to attorney's fees, where the mortgage does not provide for such fees except to foreclosure under the power in the mortgage, does not apply in a situation where a bill is filed in equity to foreclose the mortgage, and both the mortgage and the note it secures are set out in the bill, or made exhibits thereto, and the note or the mortgage provide for the payment of a reasonable attorney's fee, if such is incurred in the collection of the debt.
LIVINGSTON, C. J., and LAWSON and COLEMAN, JJ., concur.