56 Ala. 340 | Ala. | 1876
The homestead claimed in the present case is in the city of Greenville. The right must be tested as of January 21st, 1870, the date of the mortgage against which the claim is set up. The constitution of 1868 controls the question of the validity of the mortgage. Under that constitution, the residence of Mr. and Mrs. Burnett, being in a city, is not exempt as a homestead, unless it was, at the time of the mortgage, of value not exceeding two thousand dollars, or unless it was susceptible of division, so as to carve out a homestead, including the dwelling, not exceeding two thous- and dollars in value. — Miller v. Marx, at present term.
The principle stated above is decisive of the case made by the present bill; for there is no averment as to the value of the homestead at the date of the mortgage, or as to its susceptibility of division. The proof -shows that it was worth more than two thousand dollars at the time the mortgage bears date. The bill, then, fails to make a case for equitable relief, and should have been dismissed on that ground. '
The point stated above was not mooted in the court below. That principle was not asserted by this court, until after the decree in the present cause was pronounced. Hence, if we found no other cause for which to reverse the decision of the chancellor, we would feel it our duty to dismiss the bill without prejudice.
The loan of money in this case was contemporaneous with the execution of the mortgage, or, at all events, the loan was made on the agreement that the mortgage security should be executed, and the mortgage was executed pursuant to such agreement. The note and mortgage bear the same date. This constituted Mrs. Watts a bona fide purchaser.- — Wells v. Morrow, 38 Ala. 129; 2 Lead. Cases in Equity, 83 to 108. Conceding to Mrs. Burnett all the equity and rights she claims, hers was but a latent equity, which must yield to the paramount rights of a bona fide purchaser without notice,
Without intending to decide the question in this case, we may be pardoned for adding, that courts lend a reluctant ear to the complaints of parties, that they have, by deceit, been induced to execute important conveyances, which they did not intend to execute, when the averments and proof, as it is conceded in this case, show that they made no inquiry, and sought no information as to the contents. The law subserves the vigilant, not the blindly confiding. — Michael v. Michael, 4 Ired. Eq. 349; Hartley v. Frash, 6 Tex. 208; Kerr on Fraud and Mistake, 382-3; Baldwin v. Snowden, supra; Douglas v. Matting, supra
The cross bill is fully sustained by the testimouy, and the complainant therein is entitled to the relief she prays; and this court, proceeding to render the decree which the Chancery Court should have rendered, doth hereby order and decree, that the complainant in the original bill is not entitled to relief, and her next friend will be taxed with the costs thereof in this court, and in the court below. It is further ordered, that the complainant in the cross bill is entitled to the relief she prays, and to have the mortgaged premises decreed to be sold in payment of the debt secured by the mortgage. It is referred to the register to ascertain and report to the Chancery Court the amount due complainant in the cross bill, with interest thereon, the same being a gold debt; and he is authorized to re-examine any witnesses, or take further testimony, if necessary. All other questions are reserved for decision by the chancellor.
Decree of the Chancery Court reversed, and here rendered, at the costs of appellee’s next friend, in this court and in the court below.
