Beck v. Burchfield

88 So. 417, 205 Ala. 486, 1921 Ala. LEXIS 508

• Court: Supreme Court of Alabama
• Decided: April 14, 1921
• Docket: 6 Div. 73.
• Status: Published

Opinion

MILLER, J.

I-I. M. Beck, as trustee, files this bill against J. G. Burchfield and his wife, Malisa Burchfield, to foreclose a mortgage given by them. Malisa Burchfield files non est factum plea, in which she avers that “the mortgage was not executed by her, or by any one authorized by her to execute it.” J. G. Burchfield files separate answer. The prayer of the bill asks the court to ascertain the amount of the debt due complainant,-secured by the mortgage, and, if it is not paid, to foreclose the mortgage for its collection.

The court by its decree found that the property in the mortgage was the homestead of the defendants, that it was in area less than 160 acres and in value less than $2,000; the separate acknowledgment of the wife was not taken by an officer, as the law requires of a homestead, and the mortgage was therefore void as to the homestead. Section 4161, Code 1907. The decree denied the relief, dismissed the bill, and taxed complainants with the costs. This 'is assigned as the first error.

We find no note of testimony by the register in the canse. Rule 75 of Chancery Practice, p. 1551, Code 1907, is ignored. It has been held to he mandatory. Tatum v. Yahn, 130 Ala. 575, 29 South. 201.

The court rendered decree on the merits, dismissing the cause and taxing complainants with the costs. Without a note of testimony by complainant or defendant, or both, sighed by the register, as required by this rule, the court from necessity would render a decree dismissing the cause.

There can be no reversal of this decree at the request of the complainants, when it is the only hind that could have been rendered by the court under the record. Rule 75, p. 1551, Code of 1907; Wright Watson v. Kirkland, 204 Ala. 655, 87 South. 93; Tatum v. Yahn, 130 Ala. 575, 29 South. 201.

Affirmed.

ANDERSON, C. J., and SAXRE and GARDNER, JJ., concur.