Montgomery v. Perryman & Co., 41 So. 838

Montgomery v. Perryman & Co.

41 So. 838 | Ala. | 1906

TYSON, J.

The bill in this cause was filed to reform a mortgage executed by the guardian of a non compos mentis under the decree of the city court of Birmingham in equity. The decree authorized the guardian to borrow the sum of f300 to be used by the guardian in paying the taxes and other necessary .and proper expenses of his ward, and further authorizing him, if necessary, to secure the payment of such loan by the execution of a mortgage on such part of the ward’s estate as should be reasonable security for the payment of the note for the sum borrowed. The decree further provided that the cause in which it was rendered should be continued, that *210such orders and decrees might be made therein as should seem meet and proper. No other orders or proceedings were had, and on the 13th day of November, 1893, the city court of Birmingham rendered a decree dismissing said cause.

It appears from the bill that W. W. Montgomery, the non compos, owned two lots, Nos. 13 and 14, in block 9, in J. W. Montgomery’s addition to Wood Lawn, Ala. On lot 13 there were some improvements, hut lot 14 was unimproved, and was worth in the year 1892, when the mortgage-was executed, only about $25. The guardian borrowed $300 from Mrs. M. E. Jennings, securing the same by a mortgage to her conveying, with other property, lot 14, whereas lot 13 was intended. The sufficiency of the averment showing the mistake is not questioned. The bill further avers that the money borrowed ■was used for the benefit of the ward, as provided in the decree; that a mortgage upon lot No. 13, with the other property embraced therein, Avas a reasonable security, and not more than a reasonable security, for the loan, and that lot No. 14, and said other property, was in no sense a reasonable security therefor. The mortgage as executed was duly foreclosed, the mortgagee buying-in the property at the foreclosure sale; the mortgagee going into- possession of lot No. 13 and using the same as her own. Thereafter on the 14th day of October, 1899, Mrs. Jennings executed a deed to complainant to lot. No. 14 for the sum of $500; complainant going into possession of lot No. 13 thereunder, and improving same to the extent of $650’. R. B. Montgomery, the succeeding guardian, and the non compos mentis, were made • parties defendant; the latter demurring to the bill by his guardian ad litem.

The guardian of the non compos, who executed the mortgage under the decree of the city court of Birmingham in equity, had the same right to apply to such court for instructions and authority necessary in the execution of his trust as is accorded to other trustees. The title ta-the real estate of the ward is not in the guardian, but in the Avard, and in the case of a sale thereof under-*211a decree of the court of chancery the court is the vendor. In such case “until confirmed by the court it is not complete and confers no rights.” — McEachin v. Warren, 92 Ala. 558, 9 South. 197. This is true, whether the sale is public or private. A mortgage of the ward’s property depends for its efficacy upon the transfer of title and unless the property to be mortgaged is described in the decree, or when the selection of the | property is left to the guardian, unless the mortgage is confirmed by the court, its approval is in no way manifested, so as to make the mortgage its act. In such case the mortgage is invalid and confers no rights, even if the property intended to be covered is correctly described therein. It cannot, therefore, be made valid by means of mistake in such a description. The bill shows that the property of the non compos intended to be mortgaged was never designated by a decree of the court; but the selection thereof was left to the guardian, and no confirmation by the court is shown. The mortgage, therefore, confers no rights, and cannot be made the basis of a bill for the correction of a mistake therein. In short, there is lacking that essential element of mutuality between the owner of the property or any one authorized to bind him and the mortgagee upon which to found the reformation or correction. — Stephenson v. Harris, 131 Ala. 470, 31 South. 445; 6 Pom. Eq. Jur. § 675 et seq.

The demurrer interposed to the bill should have been sustained. A decree will be here entered, reversing the decree appealed froih and sustaining the demurrer.

Beversed and rendered.

Weakley, C. J., and Simpson and Anderson, JJ., concur.