The Montgomery advertiser., 1907-03-20
wINKLEMAN V WHITE. ct al.

V Bill for Review.-( Decided July eth.
 1s06.--42 So. Rep. 411).
 1. Equity; bill of review; presump- tions; record.-The fact that the rec ord was silent as to the filing of the bond as required by Section 759, Code 1896, before the sale, the defendant having been brought in by publication only, and the sale having taken place within twelve months after the decree, is no ground for reviewing the decree of foreclosure; the presumption being that the bond was given.
 2. Mortgages; action for foreclosure; reference: notice to defendant---It is unnecessary to give notice of a refer ence to be held in suit for the fore closure of mortgage to a defendant who Is in default.
 8. Equity; bill of review; scope of re- view; notice of reference.-The fail-, ure to give a defendant notice of reference in foreclosure suit is a mere irregularity. which cannot be take advantage of by bill for review. {. Same; form of .decree.--The fact that the Foreclosure decree omitted the direction that a copy of the same be sent to a defendant is not ground for reviewing the decree on a bill for re- view.
 5. Same; repugnancy of bill.---It Is not a good objection, on bill for re- view. that e bill for foreclosure of a mortgage or to enforce vendors lien was flied in a double aspect. and that the relief in each would not be identi- cal. 6. Same; pleading: repugnancy.---A bill Is not repugnant that seeks to foreclose a mortgage, or in the alter native, to enforce a vendors lien. [. Same; bill of review; pleading; presumption.--A bill or review brought ] [. IL. A.. cree does not show error in rendering the decree of foreclosure, sought to be srevieweds because the bill in the foreclosure suit did not contain aver ment as to the residence of a husband who failed to join In his wtfe's mort gage; there being no presumption that the husband was a resident of this State, and that the mortgage was in- valid under Section 234S. Code 1896, especially in view of the fact that the decree beoonies absolute as to a de- fendant properly brought In after the lapse of twelve months, under Section 753, Code 1896.
 8. same: allowance of attorneys fee. This court being unable to know the evidence on which the register based his report, or to review 1t, if known, cannot say, on bill for review, that there was error apparent In the allowance of $500 attorneys fee for foreclosure of mortgage. A wrong conclusion drawn by the court from the evidence wAI not reverse the decree on the bill for review.
 9. Same; signature to the bill.--The fact that the foot-note to the Jill for foreclosure was not signed by counsel. being. as it was. an amendab1e defect and defect waived unless taken ad- vantage of by demurrer, and 1t not ap- bearing that demurrer was filed there- to, is not ground to review the decree of foreclosure on bill for review.
 10. Mortgages; actions for fore closure; necessity for cross bill---In a foreclosure suit filed by the' holder of two of several notes secured by a mortgage. affirmative relief may be granted to the holders of all the other notess and the priority of liens de- clared. without cross bill filed by the holders of the other note.
 Rehearing denied Dec. 5, 1906.
 Appeal from Birmingham City Court
 Heard before Hon. W. W Wilkerson
 Affirmed Opinion by Tyson, ].
 WeakIey, c. T., Simpson and Ander- son, JJ., concur.