52 So. 907 | Ala. | 1910
Appellee filed her bill to foreclose a mortgage, which had been made to her by W. T. and Clara Jackson, husband and wife, to secure the debt of the former; the wife joining merely to release her dower right. Wheu answers were filed it appeared that the defendants would rely upon the fact that the husband was insane at the time of the execution of the mortgage to defeat foreclosure. Later, the death of Jackson was suggested, and leave had to revive against his heirs and representatives. There was, however, no effort to revive; but an amendment was filed, which brought in appellant as a party defendant, and prayed that a decree be rendered against appellant for the mortgage debt, together with an attorney’s fee as provided in the mortgage, and that a lien for the same be declared upon the property. As establishing appellee’s right to this relief against the appellant, the amendment showed that prior to the execution of the mortgage Jackson had agreed to purchase the mortgaged property from appellant; that to piece out his own funds to the amount of the agreed purchase price he borrowed money of appellee and executed the mortgage in question to secure the same; that Jackson paid the money he had in hand to appellant, and directed appellee to pay to appellant the sum secured by the mortgage as the balance of the purchase money, which complainant did, whereupon appellant executed a deed to Jackson, and Jackson executed the mortgage to appellee; that appellant understood the purport of the entire transaction; and that Jackson was at the time insane. It does not appear that either appellant or appellee knew of Jackson’s lunacy. Appellant demurred to the amended bill generally and specially, and, upon her demurrer being overruled, prosecuted this appeal.
Reversed and remanded.