57 So. 739 | Ala. | 1912
On May 1, 1907, the plaintiff Hudmon & Co. sold to Annie B. Mills 60 acres of land, and executed and delivered to her the deed therefor, for a consideration of $1,196.28. On the same day Annie B.
After the plaintiff had introduced the original mortgage in evidence, it was allowed against defendant’s general objection to introduce also the record of the mortgage. If it was improperly admitted, still a general objection was not sufficient to exclude it; and it was in any case harmless to defendants, as the record is an exact' duplicate of the original.
Plaintiff’s attorney, who superintended the foreclosure sale, testified that he bought the land in for plaintiff. Defendants objected to the statement on the ground that it was in writing, or else void. The answer was competent, and the objection itself was inapt. And, as written authority was not necessary to enable the agent to bid in the land for his principal, the question to this witness as to his authority, whether written or not, was properly excluded. Nor was this made necessary by the fact that the principal was a corporation.
However, as there was no plea of partial payment, under section 8851 of the Code, the validity vel non of the foreclosure is not material to the determination of the issue.- — Jackson v. Tribble, 156 Ala. 480, 47 South. 310. And all the rulings of the trial court to the exclusion of evidence of payments on the mortgage debt were for that reason without' error.
The real question, therefore, is simply whether the debt evidenced by the two notes of May 1, 1907, or any portion of it, was the debt of Mrs. Mills. It conclusively appears that the debt for which the mortgage was given included at least the purchase money for the 60-acre tract, $1,196.28, not only from attendant circumstances, but from the express agreement found in the mortgage itself. Nor is there a word of testimony to
The burden of proof is on the wife to show that a debt-evidenced by the note and mortgage signed by her and her husband was that of the husband merely, and that, she executed them only as surety. — Gibson v. Wallace,. 147 Ala. 322, 41 South. 960; Sample v. Greyer, 143 Ala. 613, 42 South. 106; Mohr v. Griffin, 137 Ala. 456, 34 South. 378; Lunsford v. Harrison, 131 Ala. 263, 31. South. 24. If the mortgage security was given for a joint debt, as to which the Avife was an actual coprincipal, the inhibition of the statute does not apply. — Lunsford v. Harrison, supra.. .Nor does it apply if any part of the debt secured Avas an original personal obligation. of the wife; for, as observed by Weaiclby, C. J., in Gibson v. Wallace, supra, “the question at last is Avhether, notAvithstanding the form of the transaction, the wife Avas attempting to secure a debt entirely her husband’s, upon which she was not bound either separately or jointly.” And again, it Avas said by Coleman, J., in Clements v. Draper Mathis & Co., 108 Ala. 211, 214 19 South. 25, 27, in defining the scope of the statute. “The material question is Avhether the debt secured by the mortgage sought to be foreclosed, or any part of it, was the debt of the wife.” Of course, if any distinct por
In our view of .the case the plaintiff was entitled to the general affirmative charge, without regard to the testimony excluded or admitted against defendants’ objection. The judgment must therefore he affirmed.
Affirmed.