
    (101 South. 185)
    JACKSON et al. v. PRESTWOOD et al.
    (4 Div. 137.)
    (Supreme Court of Alabama.
    June 30, 1924.)
    1. Equity c&wkey;196 — Cross-bill essential to foreclosure in suit to enjoin sale under mortgage.
    A cross-bill, or answer in nature of cross-bill, was essential to foreclosure in suit by mortgagor to enjoin sale of property under mortgage.
    2. Mortgages <&wkey;390 — Power of sale does not deprive equity court of jurisdiction of action to foreclose.
    That mortgage contains power of sale does not deprive equity court of jurisdiction of action to foreclose, and mortgagee may file cross-bill to foreclose when original bill seeks injunction and cancellation.
    Appeal from Circuit Court, Dale County; J. S. Williams, Judge.
    Bill in equity by J. A. Jackson and others against N. P. Prestwood, as administrator of the estate of F. M. Prestwood, and others, to enjoin the foreclosure of a mortgage,-etc. From a decree overruling demurrer to respondents’ . cross-bill complainants appeal.
    Affirmed.
    Sollie & Sollie, of Ozark, for appellants.
    The cross-bill does not set up an independent equity not available in the original bill, and demurrer should have been sustained. Eslava v. Crampton, 61 Ala. 507; Branch. Bbnk v. Strother, 15 Ala. 51; Nelson v. Dunn, 15 Ala. 501; Mooney v. Walter, 69 Ala. 75; Eslava v. Elmore, 50 Ala. 587; Rogers v. Torbut, 58 Ala. 525. Cross-complaifi-ants are probably not entitled to attorney’s fees claimed in the cross-bill. Am. Mtg. Oo. v. Pollard, 132 Ala. 155, 32 South. 630. If so, they are allowable without a cross-bill. Speakma'n v. Oaks, 97 Ala. 503, 11 South. 836.
    Riley & Stokes, of Ozark, for appellees.
    Counsel argue the questions raised, but without citing authorities.
   ANDERSON, O. J.

The original bill was by the mortgagor to enjoin a sale of the property under the mortgage, sought an accounting and the payment of the mortgage debt. Respondent answered and sought by cross-bill affirmative relief; that is, the foreclosure of the mortgage. A cross-bill, or answer in the nature of a cross-bill, was essential to a foreclosure and which could not he decreed without same. Bedell v. New Eng. Mtg. Secty. Co., 91 Ala. 325, 8 South. 494; Ketchum v. Creagh, 53 Ala. 224; Davis v. Cook, 65 Ala. 617.

The fact that a mortgage contains a power of sale does not deprive an equity court of jurisdiction of an action to foreclose, and the mortgagee may file a cross-bill to foreclose when the original bill seeks an injunction and cancellation. Vaughan v. Marable, 64 Ala. 60. The mortgage expressly provides for an attorney’s fee for a foreclosure in equity.

The trial court did not err in overruling the appellants’ demurrer to the cross-bill, and the decree of the circuit court is affirmed.

Affirmed.

SOMERVILLE, THOMAS, and BOULD1N, JJ., concur. 
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