Fair v. Cummings

79 So. 358, 202 Ala. 20, 1918 Ala. LEXIS 280

• Court: Supreme Court of Alabama
• Decided: June 6, 1918
• Docket: 8 Div. 95.
• Status: Published

Opinion

GARDNER, J.

Appellants in their original bill sought to cancel the mortgage here in question upon the grounds that it was without consideration, executed under duress, and that the notary public who took the acknowledgment of the mortgagors was at the time employed by the mortgagee as an attorney to prepare said instrument for execution. We will enter into no discussion of the facts. Suffice it to say the evidence has been given very careful consideration, and we have reached the conclusion that the mortgage here involved was executed upon a consideration of $3,500, as is recited in the mortgage; that said sum was advanced to complainant Etta B. Fair upon the agreement of said Etta B. Fair and her daughter, complainant Lydia E. Hughes, that they would secure the same by the execution of said mortgage; and that, in fact, $2,400 was paid to the said Etta B. Fair by the respondent at the time of the execution of said mortgage. We are further persuaded that the instrument was executed without duress, and was entirely voluntary on the part of the complainants.

[1,2] The insistence that the mortgage is void because of the fact that the attorney of the mortgagee, who was also a notary, took the acknowledgment, is without merit. This question has been determined, by analogy at least, against the contention of the complainants in the case of McKenzie v. Hixon, 201 Ala. 413, 78 South. 791. See, also, Devlin on Deeds, § 477a, and authorities there cited. Moreover, as there is no suggestion of homestead rights involved, we are unable to see any reason why such acknowledgment should not be treated as a proper attestation of the instrument, without regard to the question of disqualification of the notary, as here insisted.

The above-stated conclusions, therefore, determine the validity of the mortgage in every respect as against the contention set up in the original bill, and disclose that, as against any relief sought in the bill, the foreclosure proceedings were properly allowed to stand, and were confirmed by the court.

[3] A reference to the foregoing statement of the case will disclose the insufficiency of the amendment to the bill of July 10, 1916, as one for the exercise of the equity of redemption. Security Ass’n v. Lake, 69 Ala. 456. It will appear, therefore, that no occasion is presented for the application of the principle of Carroll v. Henderson, 191 Ala. 248, 68 South. 1, as to said foreclosure sale.

The decree of the court below will therefore be affirmed.

Affirmed.

ANDERSON, O. X, and McCLELLAN and SAYRE, JJ., concur.