British & American Mortgage Co. v. Norton

125 Ala. 522

Opinion

TYSON, J.

Much of the argument of appellant’s -counsel is directed to show that a writ of attachment is not leviable upon an equity of redemption -in lands. This proposition was .asserted in this case when here on former appeal and decided adversely to that contention. Norton et al v. British American Mort. Co., 113 Ala. 110; Central Mining and Manufacturing Co. v. Stoven, 45 Ala. 594; Goode v. Longmire, 35 Ala. 676; Drake on Attachments, §§ 232, 239; 1 Jones on Mortgages, (5th ed.), § 665 and note 2 on p. 601.

On the former appeal all of the equities of the original 'bill were setttled and the case as made by it only differs in respect to a matter introduced by amendment for the purpose of avoiding a certain matter of defense set up in the pleas of one of the respondents. This matter of defense as averred in the plea of respondent mortgage company, is that B. II. Williams, .one of the respondents, and the defendant in 'attachment, being indebted to Mary Jane Williams in the sum of nineteen hundred dollars, sold and conveyed to her the lands in controversy, or all his right and interest therein, in payment and satisfaction of said indebtedness, subject, however, to the mortgage given by him to- this respondent; that the sale -and conveyance of said lands was made before the levy of the complainant’s writ of attachment thereon, and that Williams, the defendant in attachment, had no interest in the lands subject to levy and sale at the time of the alleged levy of said writ of attachment, has not now any interest in said lands, and has not owned any leviable interest therein since the execution of said deed to Mary Jane Williams.

For the purpose of avoiding ‘this defense, the complainants made the amendment in which they alleged that the deed was without consideration and made with intent to hinder, delay and defraud the complainants. To this amended bill each of the respondents filed separate answers.,- Tire answer-of Williams, the defendant in tlie attachment suit, -admits the execution of the deed to-Mary J. Williams, his wife, on the day of the levy of the attachment, but says it was to pay a bona fide debt which he -owed her of $1,900, and that it was executed before-the levy of the attachment.. The respondent, Thos. ,R. Williams,,' adopts the answer of. his father,- B. R. 'Williams, Avith respect to the matter of the execution of the deed to .his mother. ... - ,

The answer of the mortgage company alleges’ that the deed Avas executed in payment and satisfaction -of a bona fide indebtedness due and OAving from B.. R. Williams to his wife in the manner and amount stated in the deed,, which was executed and delivered to the grantee before the levy of the Avrit of attachment.

We have set out Avith particularity the state of the pleadings for two reasons: First, -on account of the insistence of the appellant mortgage company that it has. proven its plea; and, second, for the purpose of showing the utter insufficiency of the ansAvers of each of the respondents to allege the necessary facts upon aaIiícIi they must rely for affirmative relief.

The indebtedness of respondent, B. R. Williams,.to the complainants, for which the writ of. attachment was. sued out to collect, is not denied by the respondents in their -answers,- nor the fact that it existed at the date of the execution of the deed by Williams to his wife. As to. the insistence that the mortgage company has proven its plea, we have only to say that the -averments of the plea are ■ substantially the same as the allegations contained in its ansAver to the bill as -amended, and that the burden is upon it to prove the bona fides of the transaction ¡between Williams and his AAdfe, just as it is upon Williams and his son, it having undertaken to uphold the bona fules of that transaction in its answer. And in order to carry the burden it i-s necessary that the 'answers should aver not only the <bona fides -of the transaction, but should state the facts in defail as to _ when, how and where the indebtedness arose, the valuation of the-land, and that it was received by Mrs. Williams in payment of her alleged, debt at a fair valuation, without the reservation of a benefit to lxer husband. — Robinson v. Moseley, 98 Ala. 70; Wooten v. Steele, 109 Ala. 563; Calhoun v. Hannan, 87 Ala. 277; Gamble v. Aultman & Co., ante, p. 372.

The recited consideration in the deed is “for an on account of moneys .received by him (Williams, the grantor) belonging to the statutory separate estate óf the said Mary J. Williams, which, with interest thereon, amounts, to nineteen hundred dollars, and for the purpose of paying said indebtedness,” etc. This recital, of course, proves nothing as against the complainants, but we quote it for the purpose of comparing it with the evidence which was offered to support it.

The recited consideration in the deed is “for and on this deed was B. It. Williams, the grantor and husband of the grantee. He testified that they were married in November, 1855; that he received money from her which was a part of her separate estate. He recevied $225 in the fall of 1858. In 1861 he received $300 which she got from her uncle’s estate. Aboitt ten years ago he received $60 more from her uncle’s estate. He got $18 or $20 that she received from her mother about the same time. That this money ivas all used to pay for the land in controversy. That he executed the deed to her about 8 o’clock in the morning of the day the attachment was levied, but before the levy, which she accepted in full payment of the amount due by Mm to her. A simple addition of these amounts will show that they aggregate the sum of $603 or $605. It is evident that the only method by which the $603 or $605 can be increased to $1,900, the amount of the indebtedness recited in the deed, is by computing interest on the items composing the alleged indebtedness, from the dates which Williams says lie received them from his wife. And it is also obvious that more than one-half ;of the $1,900 is made up of interest on the $225 and tlie $300 received by him, respectively, in 1858 and 1861. These turn .items of indebtedness arose when the Code of 1852 was in force. Under its provisions, while all the property of the wife was secured to her separate use not subject to her husband’s debts, yet the husband was her trustee, having the right to manage and control the same, and privileged to enjoy the rents, income and profits arising therefrom without legal accountability to her, her heirs or legal representative for such rents, income and profits. Indeed, he had the right to receive the property coming to his wife or to which 'she was entitled; and his receipt therefor was a full discharge, in law and equity.- — Code, 1852, §§ 2371, 2372, 2375. The interest upon these two items which went to make up more than one-half of the consideration of the -deed was not under the evidence a liability against the grantor, and cannot be regarded as entering into the consideration to support the deed as -against the complainants. To the extent it goes to make up the $1,-'•900, the deed must be regarded as voluntary. — Early & Lane v. Owens, 68 Ala. 171; Gordon, Rankin & Co. v. Tweedy, 71 Ala. 202; Newlin v. McAfee, 64 Ala. 357. With this interest emasculated, the total -debt due by Williams to his wife on December 6,1892, the date of the deed, did not exceed $775, which added to the amount due by him to the Mortgage Company at that date, to-wit, $1,944, would make the consideration of the deed $2,719 — less than the original 'sum for which the mortgage was given, and $800 less than the value of the land according to the testimony of Hinds, $1,300 less than its value according to the testimony of Wharton, and $1,800 less than its value according to the testimony of Russell. The conclusion cannot be escaped, if the' testimony of 'these witnesses be true, that the value of the land exceeded greatly the amount of the debt due by Williams to his wife. There is no reason to doubt their -statement unless it can be said that the testimony of T. B. Williams, one of the respondents, the purchaser from the Mortgage Company, the son of the grantor and grantee, is to be believed in preference to them. He testified that the land was worth between $2,500 and $3,000. He is, of course, interested in maintaining the validity of the deed to his mother, who is shown to be dead, not only as her heir at law, but -also as purchaser under a contract from the Mortgage Company. Without imputing to him any motive to swear -falsely or to intentionally under- value the lands, his interest in the result of the litigation is sufficient reason to assign for holding that his testimony is not sufficient to overcome the facts testified to by the three disinterested witnesses. Especially is this true, since the burden of proof is upon the respondents to establish this fact.

The deed must be held to be fraudulent and to1 be no impediment to the exercise of the rights of the complainants to redeem the lands.

The mortgage of Williams to the Mortgage Company contained no provision authorizing the mortgagee to purchase at a sale had under the power. — Norton v. British American Mortgage Co., supra. The contention, however, is made, that the clause in the mortgage in these words: “It is agreed that any irregularity in giving notice of or in making the sale, shall not in any manner affect the sale,” debars the right of the mortgagor to disaffirm the sale. That the purchase by the mortgagee was a mere irregularity which was cured by this stipulation. The effect of the contention is to confer upon the mortgagee the right to purchase at its own sale. We are clearly of the opinion the clause above quoted, was not intended to have this field of operation and that by no reasonable construction can it be held to have that effect.

The facts upon which the original bill predicates the complainants’.right to relief being proven, and the deed assailed by the bill as amended being fraudulent and void, there is no obstacle in the way of granting the relief sought by the complainants. The chancellor so held and in his decree directed a reference to the register to take and state an account of the amount due the Mortgage Company. In his directions to the register, he ordered him not to allow the Mortgage Company a credit for any attorney’s fee for making the sale under the power in the mortgage, and to charge the respondents with the fair and reasonable value of the use and occupation of the lands. — Pollard v. American Freehold Land Mortgage Co., 103 Ala. 289; Same case, 120 Ala. 1.

The contract of purchase under which T. B. Williams held the possession of the lands at the date of the filing of the bill, is not color of title under tbe provisión of section 1540 of tbe Cuele. — Keith v. McLaughlin, 114 Ala. 60.

Affirmed.