O'Bannon v. Myers' Executors
Supreme Court of Alabama
Appeal from the Chancery Court atWetumpka. Heard before the Hon. James B. Clark. The bill iu this case was filed by the executors of Claiborne Myers, deceased, against Joseph D. O’Bannon, for purpose of foreclosing a mortgage on a lot in the town Prattville, which purported to have been given to sethe payment of a note for $600, executed by said O’Bannon, on tbe 20th January, 1852, and payable to said Claiborne Myers, or bearer' on the 1st January, 1853. bill alleged, “ that…
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Appeal from the Chancery Court atWetumpka. Heard before the Hon. James B. Clark. The bill iu this case was filed by the executors of Claiborne Myers, deceased, against Joseph D. O’Bannon, for purpose of foreclosing a mortgage on a lot in the town Prattville, which purported to have been given to sethe payment of a note for $600, executed by said O’Bannon, on tbe 20th January, 1852, and payable to said Claiborne Myers, or bearer' on the 1st January, 1853. bill alleged, “ that the note has been lost or destroyed, complainants bolieve, and has not been paid or otherdischargedand was sworn to, by…
1Opinion of the CourtA. J. Walker, C. J.
In this case it was not necessary that an affidavit of the loss of the note, secured by the mortgage, should have accompanied the bill of foreclosure. When a bill is filed to obtain the benefit of an instrument properly belonging to the jurisdiction of a court of law, upon the ground that it is lost, an affidavit of the loss of the instrument is required. The requisition of the affidavit is a caution required by the chancery court in permitting a transfer of jurisdiction from the court of common law to a court of equity. — 1 Mad. Ch. Pr. 27-28; 1 Dan. Ch. Pl. & Pr. 449; Story’s Eq. Pl. §478;…
2Cases cited9 opinions
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