41 So. 960 | Ala. | 1906
The bill was filed by W. K. Wallace against E. R. Gibson, a married woman, to foreclose a mortgage executed by her with the consent and concurrence of her husband upon her property. The mortgage recites that she was indebted to the mortgagee in a certain sum, evidenced by a described instrument of even date, and this instrument, which is exhibited with the bill, is the note of both husband and wife, her signature being first written.
The defenses are two in number: First, that she executed the mortgage under the duress of- the husband, of which the mortgagee had knowlede; and second, that she had signed the note and mortgage as surety of the husband merely. The chancellor, on the evidence, Avas of opinion she had failed to establish either defense, and
The consideration of the note, secured by the mortgage of January 18, 1896, now sought to be foreclosed, was the surrender and cancellation of two other notes, and mortgages of an earlier date, in like manner duly executed by the wife to the same mortgagee, her husband joining therein, as required by the statute, to constitute a valid conveyance. Attention must, therefore, be directed to the two previous transactions. At the outset, an important fact, established by the undisputed evidence, and in the light of which the transactions, and
We Avill noAv consider the evidence as to each of the previous mortgages, cancellation of Avhich formed the consideration of the instrument directly involved in this case. In respect of the mortgage of March 2, 1894, there is little room for controversy.. Although there is no doubt of the fact that the husband, in the exercise of his authorized general superintendence of the wife’s affairs, arranged the preliminaries, and induced the mortgagee to bring the money to- their farmhouse together Avith a prepared mortgage ready for execution, yet she Avell understood the loan was made to her, and she admits the money Avas placed in her hands, with the statement that it was hers. The circumstances attending the mortgage
This leaves for consideration a paragraph in the deposition of Wallace, upon which the' appellant strongly relies to establish the contention that the loan of 1889 was made to the husband alone We quote it literally: “Mrs. Gibson did not apply to me in 1888 to loan her $270 or any other amount. In 1888 Jim Gibson was up here and wanted to borrow some money. . I told Mm I could not loan it to Mm as he had nothing to secure it with. But if he could get his wife to give a mortgage on the land that I would let him have the money. He went away and the next thing I knew about it Crow came up with the mortgage signed up and got the money. That is the mortgage dated January 18, 1889 with which Crow also brought a letter from Gibson and Mrs. Gibson and got the money.” The letter which is-produced, signed by both, requested that the money be sent them for the note and mortgage by the bearer Crow, and thereupon, contemporaneously with the delivery of the instruments, purporting to .bind her and her land, the money was confided to tlieir authorized agent as requested by hoüi. Lunsford v. Harrison, 131 Ala. 263, 31 South. 21. In the light of the general agency of the husband, and the declaration of the mortgagee that, he Avould not make a loan to the husband, we interpret the mortgagee’s' statement to mean that he would let him have the money for the wife, and as her representative, and upon the faith of a valid security; and this interpretation is supported by what followed in the preparation and delivery
We have considered the legal evidence only and all the legal evidence found in the record; there is no occasion to review the rulings of the chancellor, admitting or excluding parts of the testimony.
The decree was correct and will he here affirmed.
Affirmed.