Coleman v. Smith, 55 Ala. 368

Coleman v. Smith

55 Ala. 368 | Ala. | 1876

STONE, J. —

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 *376assent, in the strict and legal meaning of the term. We hold that the proof in this record fails to show a case of coercion, or fraud, that invalidates the mortgage of the homestead. See Miller v. Marx, at the present term.

2. It is contended, in the second place, that twelve hundred dollars, the statutory separate estate of Mrs. Coleman, was expended by her husband in improvements on the lands mortgaged, and that this sum should be declared a lien in equity on the lands, paramount to the mortgage interest secured to Mr. Smith. This relief was denied by the Chancery Court, on the ground that Mr. Smith stood' in the category of a purchaser, and that when he took the mortgage, he had no notice, so far as the record disclosed, of this equity of Mrs. Coleman. If the mortgage was taken to secure a debt presently contracted, or contracted on the faith and promise that such mortgage security should be given, then the ruling of the court was unquestionably correct. The testimony does not clearly show when, or on what assurances, if any, the debt tó Smith was contracted. Possibly, the chancellor was justified in inferring from it that the making of the mortgage was but the consummation of an agreement, made at the time of the loan, that Smith should be thus secured. This would clearly bring this case within the rule; and we can not find enough in this record to justify us in ruling that the chancellor, in this respect, committed an error. — See Wells v. Morrow, 38 Ala. 126.

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.

3. On the cross appeal by Smith, the assignments of error question several rulings of tbe chancellor ip. the decree ren* *377derecl on the original and cross bills, wbicb were beard together, and on the same testimony. It is contended, in the first place, that Mrs. Coleman, by the execution, with her husband, of the note and mortgage to Smith, thereby waived her prior right and lien on the lands, secured by the deed of trust of Coleman to McQueen, trustee, and conveyed to Smith a paramount lien and right to have his claim made a first charge on the lands.

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.

4. The record does not inform us that Coleman then owed any other debt. The only testimony, assailing the bona fides of this trust deed, is that of Smith and one other witness, who testify that Coleman told them that the deed to McQueen, for the use of Mrs. Coleman, was made to keep the distributees of his father’s estate off him until he could make some settlement with them. Coleman, in effect, admits that he made some such statement as this. But this was done when neither Mrs. Coleman nor her trustee was present. If it be conceded that this convicts Mr. Coleman of a fraudu-lentaintent in making the trust deed, it does not affect or impair the rights of Mrs, Coleman under the deed; for she and her trustee both testify, that they heard of no such intention ; and there is no testimony in the record, conveying such knowledge to them. — Stover v. Herrington, 7 Ala. 143; Anderson v. Hooks, 9 Ala. 704; Goodgame v. Cole, 12 Ala. 77; Borland v. Mayo, 8 Ala. 104; Townsend v. Harwell, 18 Ala. 301; Hall v. Heyden, 41 Ala. 242.

5. The money of Mrs. Coleman, converted by her husband, being her statutory separate estate, by no contract with her, or with another for her benefit, could 'he convert it into an *378equitable separate estate, or an estate made separate by contract. — Revised Code, § 2374; Reel v. Overall, 39 Ala. 138; Motion v. Martin, 43 Ala. 651; Brevard v. Jones, 50 Ala. 221; Barclay v. Plant, 50 Ala. 516. It results, that the debt due to ber, and the mortgage security for its payment, were her statutory separate estate, when she, with her husband, executed the note and mortgage to 'Mr. Smith.

6. The debt to Smith was in no sense the debt of Mrs. Coleman. It was the debt, and only the debt of her husband. She had not the power, or legal capacity, to bind herself personally for its payment, or to make it a charge upon her statutory separate estate. Prom anything appearing in this record, her name on the note and mortgage were, and are, for such purpose, simply void acts. — Bibb v. Pope, 43 Ala. 90; Wilkinson v. Cheatham, 45 Ala. 337; Northington v. Faber, 52 Ala. 45. This last case is almost precisely like the present one. — See, also, Warfield v. Ravesies, 30 Ala. 518. The distinction between this case and that of McMillan v. Peacock, recently decided, is precisely the difference between statutory separate estates, and equitable estates of married women. The fóriner she can not charge, save as the statute expressly authorizes. The latter she can, and does charge, by all her contracts and agreements, which, entered into by one sui juris, would bind him personally.

7. 'There is nothing in this case which requires or authorizes us to charge Mrs. Coleman with the rents of the property, or with the waste committed. Either mortgagee, as against Mr. Coleman, had the right to claim the rents of the property. Between themselves, Mrs. Coleman’s right was first in time, and, therefore, prior in right. So, either mortgagee had the right to interpose, and, by injunction, arrest the commission of waste. — See 2 Brick. Dig. 253, § 72; p. 254, §§ 83, 84, 85, 88; Welch v. Phillips, in manuscript; Lyon v. Hunt, 11 Ala. 295. We are not aware of any rule of law, which arms the junior mortgagee with the power to charge the senior mortgagee with laches, and a pecuniary mulct, on account of the failure of the latter to possess herself of the rents, and to arrest the waste. It was as much the duty of Mr. Smith to move in this matter, as it was of Mrs. Coleman.

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.

8. The chancellor having decreed to complainant only the corpus (or principal) of the debt due to her from her husband, no question can arise as to the application of rents and profits to the interest accruing on the mortgage debt. The *379register, in ascertaining tbe amount due to Mr. Smith, committed an error in the manner of computing interest. — See Devised Code, § 1830. When partial payments were made, such payments should have been applied, first, to the extin-guishment of the interest then accrued, and only the balance or remainder placed as a credit on the principal. The exceptions to his report, however, do not raise this question. 1 Brick. Dig. 770, §§ 1930, 1931, 1935, 1936.

9. It is contended that, inasmuch as Mr. McQueen, father of the complainant, died testate, the advancement made to her, or to her husband, before Mr. McQueen’s death, should not have been brought into hotchpot, and should not have been charged against her in distribution. Such should have been the case, if the will made complete disposition of the estate, and made no provision for such charge. The pleadings, however, make no mention of the will, or of its provisions. It is only once mentioned in the record--in J. D. McQueen’s testimony — and none of its provisions are stated. In the final distribution of the estate, advancements were charged against other legatees or distributees, as well as Mrs. Coleman. In the absence of averments in pleading, and of all proof as to the contents of the will, we are not authorized to presume that the will was of such character as to forbid the charge of advancements against the legatees. We rather infer that the will required such charge to be made.

10. On a single question, the chancellor erred. He should not, without consent of the parties, have confirmed the report of the register in vacation. In this case, there was not only no consent that the report should be then acted upon by the court, but the solicitor expressly objected to, and protested against such action.

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.