98 Ala. 511 | Ala. | 1893
The original and amended bills were filed by the appellant, Ingram, to foreclose a mortgage on a lot in Hatcliechubbee, Ala., executed on the 1st day of May, 1888, by C. L. Heard and Avife, to secure the payment of their joint and several bill single, for the sum of two hundred dollars, payable October 1st, 1888, and any advances made themdur-
Tbe theory of tbe defense was, tbat tbe lot was purchased with the moneys of tbe wife ; or, if not purchased with her moneys, but with tbe money of tbe husband, be intended an investment for her, to reimburse money of hers be bad invested to bis own use. This is matter strictly and purely defensive, tbe burden of proving wbicb rests upon tbe party asserting it. Tbe burden of proving a disputed fact, in all cases, rests upon tbe party asserting its existence, and claiming to derive right and benefit from it. And if tbe evidence in reference to it does not preponderate in favor of its existence, tbe party must fail for want of proof.— Lehman v. McQueen, 65 Ala. 570. Tbe legal title to tbe lot resides in tbe appellee, Margolius, but it is admitted tbat be sold tbe lot to tbe husband, receiving from him full payment of tbe purchase-money. Nor is it matter of dispute tbat tbe bus-band on tbe purchase entered into possession, and made valuable improvements, converting tbe lot into a homestead for himself and family. It is shown by tbe evidence of Brinson, in whose service tbe husband was engaged at tbe time of tbe purchase of tbe lot, that be loaned him tbe money to pay tbe purchase-money; and tbat subsequently be and Ingram loaned or advanced him tbe greater part of tbe money to pay for tbe improvements. It does not appear tbat, subsequent to tbe marriage, tbe wife bad exceeding one hundred and seventy-five dollars in money, and this was more than two years prior to tbe purchase of tbe lot; and it is not shown tbat any part of this sum ever passed into tbe possession, or under tbe control of tbe husband, except
It is true that tbe grantee of tbe deed, which is absolute on its face, may, in a court of equity, have it declared a mortgage, and as a mortgage foreclose it. In such case, tbe same rule applies, which is applied when tbe grantor asserts that such deed is not as it purports to be, an absolute conveyance. It must be shown that tbe agreement that tbe conveyance should operate as a mortgage was contemporaneous with its execution ; or, if subsequent, that it was supported by some new consideration. And tbe proof of the agreement must be clear and convincing.—Bryan v. Cowart, 21 Ala. 92. We do not find in tbe record evidence to support tbe allegations of tbe cross-bill in this respect. It may be, tbe answer of tbe personal representative of tbe wife is susceptible of being construed as admitting tbe deed was intended as a mortgage. However that may be, tbe answer is not evidence against tbe infant defendants, her heirs, and
The absolute conveyance, though prior in point of time to the mortgage to the appellant, was not interposed as a bar to the relief sought by the original and amended bills. On the contrary, it was agreed between the parties, the appellant and the complainants in the cross-bill, that the mortgage to the appellant was entitled to foreclosure. The debts secured by the mortgage are the debts of the husband, though the wife joined him in the execution of the bill single. The mortgage is properly executed and acknowledged to convey the homestead, and is a valid, subsisting security for the debts.
The result is the decree of the chancellor on the original and amended bills must be reversed, and a decree here rendered granting appropriate relief to the appellant Ingram.
It is referred to the register to take the proper account, showing the amount due complainant, including interest until the coming in of the report. All other questions are reserved for decision by the chancellor.
^Reversed and rendered.