99 Ala. 612 | Ala. | 1892
The averments of the bill show that complainant, a married woman, possessed of a statutory separate estate in lands, desiring to assist her father, Thomas McCullough, to raise a certain sum of money by mortgage of real estate, conveyed to him, without a valuable consideration to her, by deed, her lands. The bill charges that the New England Mortgage Security Company, the lender, to whom Thos. McCullough executed the mortgage to secure the loan of the money, The Corbin Banking Company, and Collier & Pjnckard, the parties through whom the loan was effected, and McCullough, the borrower, all knew the pur
The New England Mortgage Security Company answered the bill, denying the averment, that the Corbin Banking Company and Collier & Pinckard, or either, in any manner was their agent, or represented them in any respect, in effecting the loan; that the Corbin Banking Company submitted to them in the regular course of business the security offered, and being satisfied from an examination made by its own agent and attorney, agreed to loan and did loan the entire amount of money expressed in the note and mortgage executed to it by Thomas McCullough. It denied having any knowledge of the purpose for which complainant executed the deed to her father, or that the consideration expressed in her deed, to-wit, $1,800, was not a true and bona fide consideration; denied having any knowledge of or interest in the second mortgage executed by McCullough to Collier & Pinckard.
The answer of the Corbin Banking Co., and the answer of Collier and of Pinckard, accord with the answer of the New England Mortgage Security Company, in the respects stated above.
The New England Mortgage Security Company foreclosed its mortgage under a power of sale, contained in the mortgage, ana executed a deed to the purchaser. The bill prays for a cancellation of the deed to McCullough, the deed to the purchaser at foreclosure sale, and the mortgages to the lender, and to Collier & Pinckard. At the final hearing upon the pleadings and evidence the complainant’s bill was dismissed out of court.
It can not be seriously contended, under the proof, that the New England Mortgage Security Company had any actual notice, or information of facts which would have led to a knowledge of the fact, that the deed executed by complainant to Thos. McCullough was not a bona fide deed, founded upon a valuable consideration. The contention is that the Corbin Banking Company, and Collier and Pinckard
We need not decide this question. The evidence is overwhelming and of such a character as to leave no doubt, in the mind of the court, that as to the loan l?y the New England Mortgage Security Company, that neither the Corbin Banking Company, nor Collier & Pinckard, whether acting separately or together, were the agents of the lender. The evidence shows conclusively, that all the transactions, with Thomas McCullough, and his daughter, in the preparation of the security upon wThich it was intended to secure or effect a loan, was matter of contract or agreement between themselves. That having prepared the security, it was then submitted by the Corbin Banking Company to persons and corporations engaged in the business of loaning" money. That upon its merits, it was submitted to the New England Mortgage Security Company, and, after careful examination, was accepted by it. We agree with the chancellor, in his conclusion, that neither the Corbin Banking Co. nor Collier & Pinckard acted as the agents of the New England Mortgage Security Company, in obtaining the loan, that it had no notice of any fact sufficient to charge it" with a knowledge of the real consideration of the deed to Thomas McCullough, or the purpose for which it was executed.' In so' far as the decree, dismissing complainant’s bill, affects the New England Mortgage Security Company, it is affirmed.
If at any time prior to the final hearing, or at the final hearing, complainant had amended her bill, by striking out the New England Mortgage Security Company, and 'upon proper averments had prayed for relief only as against:Thos. McCullough, and the mortgagees and holders of the second mortgage, a different case would be before us for considera
As thus modified the decree of the Chancery Court is affirmed.