125 Ala. 498 | Ala. | 1899
The bill in this cause was filed for the purpose of having certain conveyances cancelled as a cloud upon the title of complainant to the land described in the bill. Her right to do so depends, in a large measure, upon whether she has established by the evidence that the debt secured by certain mortgages executed by her and 'her husband upon the land, was her debt or the debt of her husband. The bill alleges that on the 27th day of May, 1896, she joined her husband, as his security, in the execution of a note and mortgage for $2,310, ujxm the land to one Keeling; that on the ‘25th day of March, 1897, Keeling sold the land under the power of sale in his mortgage, to Kreth, who sold the land to the Gaffords.
It cannot be doubted that if the mortgage to Keeling was given wholly as security for a debt of the complainant’s husband, it is void as contravening the express inhibition of the statute. — Code, § 2529; Richardson v. Stephens, 122 Ala. 301; Price v. Cooper, 123 Ala. 392. And the burden of proving this affirmative issue, as
But this is not all. One would also -conclude from this-testimony that the complainant paid the cash to Dupuy when she purchased the property of him, and yet, the record discloses that she gave to him a mortgage upon it to secure two notes, one for $500, payable September 1, 1S86, and the other for $1,250, May 13, 1886; the date of' this mortgage being the same as that of the date of the-deed of Dupuy to her, to-wit, May 13, 1886. This mortgage, was satisfied of record on the 20th of June, 1886. How it was paid, we are not informed 'by either of theseAVitnesses. But the inference is irresistible that the larger portion of the debt secured by it was paid out- of' the proceeds of a check drawn by M. C. Thomas on the First National Bank of Birmingham to the order of the complainant, of date May 13, 1886, indorsed by her- and paid by the bank on the 14th, and this may, in a measure, account for the mortgage given by the complainant to Thomas on -this property for $2,000, of date February 15,, 1890, and which remained unsatisfied of record until June, 25, 1898; and also account for the check given by him payable to her order for $762.75, of date February 15, 1890', and indorsed “Mrs. Bertha Speaker, per A. Speaker,” all of which the complainant professed to kn-OAV so little about. In addition to-the recitals in the Kreth mortgage.showing the debt it was made to secure Avas the debt of the complainant, there -are also recitals in the mortgage to Keeling showing, at least, that the debt secured by it was a joint debt of hers and her husband, and in the lease contract which: she made with Kreth, after his-'purchase at the mortgage-
In treating of the subsequent acts and conduct of the complainant and in giving force to them as evidential facts, we do not -do so upon any assumption that she is bound by them on the principle of ratification by her of having become the surety for her husband. For if it be true that the debt was not hers, but her husband’s, the mortgage securing it being absolutely void, she could not be held to a ratification of it. — Pettit’s Admr. v. Pettit’s Distributees, 32 Ala. 288; Butler v. Lec, 11 Ala. 855; Shipley et al. v. Eastwood, 9 Ala. 198; Swann v. Miller, 82 Ala. 530. But her acts and conduct subsequent to the execution of the mortgage assailed as invalid, if inconsistent with her testimony impeaching the validity of them on the ground that they were made to secure her husband’s debt, may be properly considered for the purpose of determining what credit or weight, if any, should be given her testimony. And this observation is also applicable to the testimony of her husband.
From June, 1891, to 'May, 1896, nearly five years, the complainant, without complaint,- without a protest, and with full knowledge of its existence, permitted Kreth to hold and own a mortgage upon her property, and in May, 1896, executed the Keeling mortgage in renewal and discharge of the Kreth mortgage, which she permitted to remain as an ostensible incumbrance upon her homestead; and more, sbe permitted, without a word of objection, ber land to be sold'at public sale and to be bought by Kreth, and then to become bis tenant for six-
It would seem that what we ’have said would be sufficient to warrant the conclusion that the complainant has failed to establish by that clear and convincing proof which she would be required to produce in order to overcome the adverse inference to be indulged against her •on account of her acts aud conduct, evidenced by solemn writings and otherwise, recognizing the validity of these mortgages. • Blit there is other testimony in the record •tending strongly to show that the testimony of herself and husband is not entitled to that probative force which •should characterize, the proof in such cases. Adams, the broker and agent for the complainant to negotiate ■the loan, testified that he was informed that the loan Avas for the purpose of paying off a mortgage on the property for $2,000, held by M. C. Thomas of Tuscaloosa; that complainant and her husband executed and deliv•ered to him tbe note and mortgage to Kreth which he forwarded to Kreth. That Kreth required real estate as security for the loan. That he knew before he Avas approached by her husband to negotiate the loan, that complainant owned the property, but. that he required tbe complainant to furnish an abstract of title, which lie had an attorney to examine and give an opinion as to the ownership of the property, which abstract and opinion he produced and was introduced in evidence and is in the record. That he drew the note secured by the mortgage and that complainant was the principal on said note. That her husband signed the note and mortgage simply to give his consent for his Avife to make the contract. It was understood that the loan, and in fact the loan Avas made to the complainant alone.
. Kreth testified that the loan was negotiated through Adams; that be demanded as security a mortgage on real estate, as be makes no loans on personal property. He required an abstract of title of complainant showing her ownership of the property and the opinion of an at
Witness Wilder corroborates Kreth as to the execution of the lease and the fact of possession by the complainant and her 'husband as his tenants under it.
Bethea testifies that as agent of Kreth he collected the rents, which were paid to him by complainant’s husband. That he was requested by both complainant and her husband to have some repairs made and that he -and Kreth went to look at the house and premises. The complainant pointed out what repairs were needed and they were made. That he had a conversation with the complainant in which she stated that they had lost the property, and in a conversation had with her husband pending certain negotiations 'looking to a trade between Gafford and the complainant and her husband, in which it was discovered that Thomas’s mortgage has not been satisfied of record, he told witness that the money borrowed from Kreth was taken by him in person to Tuscaloosa -and paid to Thomas.
Gaffoxd also testified to the same -statement being made by the complainant’s' husband. That Thomas owned -a mortgage upon this property when Kreth made the loan is not controverted. The complainant, on
We have set out at considerable length a greater portion of testimony without comment, which we deem unnecessary, since it so flagrantly and patently contradicts every material fact testified to by the complainant and her husband. We are of the opinion that she is not ■entitled upon the evidence to the relief 'sought by her bill, irrespective of the other question invoked by the defense of the respondents of bona ficle purchasers for value without notice.
The decree of the chancery court must be reversed, and a becree will be here rendered dismissing her bill.
Reversed and rendered.