55 Ala. 368 | Ala. | 1876
Only two questions are raised by the assignments of error by Mrs. Coleman. First, the claim of homestead. Mrs. Coleman united with her husband in the execution of the mortgage to Wm. D. Smith, and the certificate of the acknowledgment of the mortgage is, in form, strictly according to the statute.' — Bevised Code, § 1548. It is contended, however, that, although signed and acknowledged by Mrs. Coleman, yet the mortgage was not, in fact, executed with her “voluntary signature and assent.” Four witnesses were examined on this disputed question. The substance of the testimony certainly is, that Mrs. Coleman hesitated before executing the mortgage, and at last signed it reluctantly. Still, there was no coercion, no subjugation of her will, and no false or fraudulent representations made to her, by which she was induced to join in the conveyance. Especially is there an entire absence of proof that Mr. Smith procured or connived at the employment of any influences, designed or calculated to procure her signature. True, she was pur-suaded by her husband, and probably by others; but, when she came to act, she did it freely, without being impelled thereto by fraud or duress. She freely elected to execute the mortgage, possibly under the conviction that Mr. Smith ought to be made secure, and partly, no doubt, as a means of averting a calamity then impending over her husband. Human actions are rarely impelled by isolated motives. We often find ourselves in-a dilemma, to extricate ourselves from which we must elect between two confessed evils. Left entirely free, we would prefer neither; but, being compelled to take one or the other, we naturally choose that which we deem least hurtful. In thus choosing, we give our voluntary
Another view of this question, however, shows conclusively that the chancellor ruled correctly, when he disallowed this claim. The largest sum of Mrs. Coleman’s money, used and converted by her husband,, which the testimony authorizes us to find, is about $3,800. Of this sum, only a part was expended on the lands in controversy. We have no authority for finding that as much as $3,500 of it was thus used. By a deed of trust, older than the mortgage to Smith, conveying the same lands described in the mortgage, Mr. Coleman secured to his wife $3,500 of this sum of $3,800. This leaves unsecured only $300 of the entire sum thus converted by him. The chancellor, by his decree, has declared, in favor of Mrs. Coleman, a lien on all the lands, for the payment of said thirty-five hundred dollars, paramount to the mortgage lien of Mr. Smith. We think this secures to her a lien upon the land for a much larger part of her money than was expended in improving it; and that she has no equity to go against the land for the remaining three hundred dollars.
If it were even an open question of fact, uninfluenced by the finding of the chancellor, we think, on the testimony in this record, we would be forced to find that, between 1854 and 1861, Mr. Coleman, the husband of Mrs. Coleman, received, used and converted, of the statutory separate estate of Mrs. Coleman, a sum exceeding thirty-five hundred dollars. So, when Coleman, in 1868, made a deed of trust to McQueen, trustee, to secure Mrs. Coleman to the extent of thirty-five hundred dollars due her, he left an unsecured residuum of debt to her, of two or three hundred dollars. This was principal, or corpus, of her statutory separate estate, without any interest thereon. Coleman, then, as trustee, owed his wife, as beneficiary, a sum at least equal to the sum secured by the mortgage. To this extent, she was his creditor, and he had the right to secure her by deed of trust, if there was no fraud in the transaction. — Barclay v. Plant, 50 Ala. 515; Harris v. Brown, 30 Ala. 401; Goree v. Walthall, 44 Ala. 161; Stone v. Gazzam, 46 Ala. 269; Brevard v. Jones, 50 Ala. 221.
All the interest which Mrs. Coleman owned in said lands being her statutory separate estate, it follows that her attempt to mortgage it to secure a debt of her husband is inoperative. — Northington v. Faber, supra.
For this error, the decrees of the Chancery Court, rendered after the register made his report, must be reversed, and the cause remanded. On the appeal by Mrs. Coleman, the decree of the chancellor is affirmed.