Interstate Building & Loan Ass'n v. Agricola

124 Ala. 474 | Ala. | 1899

SHARPE, J.

— The bill of complaint is filed under the act of Dec. 10th, 1892, (Code, § 809, et seq.), to obtain a decree quieting the title to land of which the complainant is in possession as the vendee of Mrs. Emma E. Hamlin.

. The act prescribes in general terms what such á bill must contain and this bill conforms to its requirements. Nothing appears in it calling for an offer-to do equity on the part of the complainant. The demurrer was properly overruled. The exceptions to the answer should also have been overruled: .

By the statute the defendant was required to set forth and specify not only its title, but also its “claim, interest or incumbrance and how and by what instrument the same is derived and created.” The defendant answering-sets up a mortgage upon the land alleged to have been executed to it by Mrs. Hamlin and her husband prior to the complainant’s purchase, to secure a loan of money. It was proper for the answer to show the defendant’s right as a foreign corporation to acquire the mortgage as well as the amount secured by it, and how and when the same ivas payable, and to that end to set forth or allege by-laws winch entered into and formed a part of the contract. The application for the loan Avas a step which the by-laws made necessary to the regularity if not to the validity of the loan. It may be that certain irrelevant by-lairs are exhibited but they are not pointed out by the exceptions.

The letters of complainant exhibited in the ansAver Avere set out as the foundation of the defendant’s claim that he assumed the payment of the mortgage' debt and .were not impertinent to that theory of defense. The exceptions being only for impertinence cannot be used to test the merits of the defense.

The supposed infirmity in the mortgage of Mrs. Hamlin to the defendant lies in the form of words used as expressive of her husband’s joinder therein. Ohr statute provides with certain exceptions that the Avife “cannot alienate or mortgage her lands or any interest therein AA'ithout the assent and concurrence of the husband to be manifested by his joining in the alienation in the mode prescribed by laAv for the execution of conveyances of lands.’’ — Code, § 2528; Code of 188(1, § 2848. This statute has been construed to mean “nothing more'nor less than the husband shall join in the alienation in such a Avay as Avould be necessary to a conveyance of his interest in the land, if the land belonged to him in severalty or joint’.y or in common with others.” — Davidson v. Co.r, 112 Ala. 510. The instrument in question is drawn in terms Avhicli Avould be appropriate for a mortgage to the defendant by Mrs. Hamlin if she were a feme sole, reciting the consideration and the description of property and using apt Avords for its conveyance. At the conclusion of its recitals of her action, is the folloAving: “And I, husband of Emma F. Hamlin hereby consent to the making and execution of this deed by her and join her in its execution and the conveyance of the property to the Interstate Building and Loan Association. All erasures and interlineations made before signing. In witness Avhereof Ave hereunto set our hands and seals this 20th day of April, 1894.” Next follows the signatures of Emma F, and E. L. Hamlin Avith attestation by witnesses and certificates of acknowledgment as to both the signers in due form.

It may be that this recital on the husband’s part in the transaction standing alone would be insufficient in respect to the description of the property. It is certainly the law that to pass the title to land, words must be used, sufficient to show an intention of the parties to convey, but it is also certain that neither under the common law nor the statute is any set form or arrangement of words necessary. It is sufficient if those adopted show an intention of the parties to convey.' — 4 Kent 491; Devlin on Deeds, §-; Wisdom v. Reeves, 110 Ala. 418; Code, § 983. And the intention may be arrived at from words supplied by adoption from another deed where the writing unde! construction makes appropriate reference thereto. — Lemon v. Graham, 131 Pa. 447; Harlowe v. Hudgins, 84 Texas 107, 31 Am. St. Rep. 21; Wisdom v. Reeves, supra. For a stronger reason parts of a deed may be referred to in and made operative upon other apparently disconnected parts of the same instrument. Such effect is produced in this mortgage by the recital of E. L. Hamlin’s joinder in the conveyance looked to in connection with the entire instrument. It was an adoption of the terms of conveyance, including the words “grant, bargain, sell, and convey,” and an application of those terms to his act, in a way which would have conveyed his interest in the land if he had owned any.

It thus appears that the mortgage made to the defendant is a valid security for the loan to Mrs. Hamlin. This fact repels its claim to subrogation under her mortgage to Bellinger which was paid out of its loan.

Let the final decree and the order sustaining exceptions to the answer and therein charging costs against the' defendant be-reversed and a decree here rendered declaring the defendant’s only interest in the land in controversy to be derived from the mortgage from Emma F. and E. L. Hamlin mentioned in its answer and that said mortgage is valid and is an encumbrance upon the land described therein superior to the complainant’s title to the extent of the unpaid balance of the debt therein mentioned, and charging all costs against the appellee except those incident' to the demurrer which by the order of the chancery court were charged against the appellant.

Reversed and rendered.