Walker v. Baker

74 So. 368 | Ala. | 1917

GARDNER, J.

(1) The bill in this case shows that the separate acknowlédgment of the wife to the mortgage sought to be canceled as a cloud on title was taken by one who was an officer and stockholder of the corporation to which the mortgage was executed. It has been held by this court that on direct attack such a mortgage will be declared invalid. — Hayes v. So. B. & L. Ass’n, 124 Ala. 663, 26 South. 527, 82 Am. St. Rep. 216.

(2) It is also well settled that as a general rule one seeking the cancellation of such a conveyance as a cloud on title will be required, under the maxim that “he who seeks equity must do equity,” to return any money advanced or paid upon the faith thereof. — Grider v. Am. Freehold L. & M. Co., 99 Ala. 281, 12 South. 775, 42 Am. St. Rep. 58. Many authorities recognizing this equitable maxim are cited in the recent case of Coburn v. Coke, 193 Ala. 364, 69 South. 574. The bill in this case, however, specifically alleges that at the time of the execution of the mortgage no money was advanced, but that the mortgage was given to secure a past-due indebtedness. In the case of Jenkins v. Jonas ScJnoab, 138 Ala. 664, 35 South. 649, this court, in speaking of such a situation and of the application of this maxim, said:

“From all that appears the consideration may have consisted entirely of a past-due indebtedness, and hence there is now no room for application of the maxim.”

Counsel for appellant in their brief concede, as we understand it, that their contention in the instant case would require that the opinion in the Jenkins Case, supra, be overruled. We are cited to no authority which has questioned the soundness of that decision, and we are unwilling to depart therefrom. It must therefore result that the bill was sufficient, and the decree of the chancellor is accordingly affirmed.

Affirmed.

Anderson, C. J., and McClellan and Sayre, JJ., concur.