
    J. L. Clemmons v. J. S. Connell, et al.
    Mortgages — Junior Incumbrancer — Attorney’s Fees.
    Where attorney’s fees are claimed by a mortgagee in a suit to foreclose his mortgage, a junior incumbrancer may, by pleading and proof, object to the attorney’s fees and have the court to pass upon the same.
    APPEAL, FROM SHELBY CIRCUIT COURT.
    February 26, 1875.
   Opinion by

Judge Cofer :

We cannot concur with counsel that the appellant had no opportunity to interpose objections to the attorney’s fees claimed by the mortgagees, until the court came to render judgment in the case.

He might have done so either by his original petition, by an amended petition, or by a reply; for although the answers and cross-petitions sought no relief against him personally, they affected his interest as a junior incumbrancer; and he might have set up any defense that existed in favor of the mortgagor, and if he meant to resist the claim for attorney’s fees should have done so by plea, and would then have been entitled to be relieved against those claims, unless some sufficient equitable reason for denying such relief could have been shown.

Clemmons & Willis, for appellant.

Caldwell & Harwood, for appellees.

This court has never held that such agreements are void, but simply that they will be relieved against as imposing a penalty on the debtor for default in paying his debt, and, being regarded as a penalty, may be relieved against in the same manner and upon the same principles upon which relief will be given against other penalties of a like character.

Petition overruled.  