59 So. 621 | Ala. | 1912
Lead Opinion
Bill by the wife (appellee) to cancel a mortgage upon her lands, upon the averred theory that the debt (to the appellant bank) it was given to secure was the debt of her husband, and hence void under the letter of Code, § 4497.
From the face of the instrument, it appears that the indebtedness in question was the joint obligation of both complainant and her husband, E. J. Wesley.
The burden of proof was assumed by complainant, and was upon her, to establish the invalidity, of the mortgage according to the theory stated.
Upon reconsideration of the entire legal evidence on the issue, our conclusion is that the plaintiff has dis
The decree of the chancellor is therefore affirmed.
Affirmed.
Dissenting Opinion
(dissenting.) — Where a mortgage upon the separate property of a married woman, which shows upon its face that it was made to secure a debt to the mortgagee by the married woman, as principal, and not as surety for her husband, is sought to be avoided and annulled by the wife, although she admits the execution of the mortgage, upon the ground that she executed it and the note which it was given to secure as surety for the husband, the burden of proving that the debt secured by the mortgage was the debt of her husband, and that she was surety in the execution of the instrument, is upon the wife. And, in order to overcome the adverse inferences indulged against her on account of the recitals of the mortgage, the proof should be clear and convincing; and in determining the weight and sufficiency of the evidence it is proper to consider her acts and conduct subsequent to the execution of the mortgage assailed, not as a ratification, but for the purpose of determining what credit or weight, if any, should be given her testimony. And this observation is likewise applicable to the testimony of her husband. —Gafford v. Speaker, 125 Ala. 498, 27 South. 1003.
The question in this case is: Was the loan made to the wife or to her husband? The wife executed, the mortgage as principal, and renewed the same by a sec
I do not think that the complainant has met the burden that the law casts upon her of showing that she signed the mortgage as a mere surety for her husband, and therefore dissent from the holding of the majority of the court.