Farmers Savings, Building & Loan Ass'n v. Greenwood

137 Ala. 257

• Court: Supreme Court of Alabama
• Decided: November 15, 1902
• Status: Published

Opinion

DOWDELL, J.

There is no distinction in principle between this case and that of Monroe v. Arthur, 126 Ala. 362. In that case we held that the deed was not void on its fact, but only because of extrinsic facts resting in parol. The same is true here, Iti was there further said by this court speaking through McClellan, O. J.: “These extrinsic facts did not involve any matter for which the execution of the paper could be assailed collaterally, as a mere incident to a proceeding prosecuted for a purpose other than the cancellation of the instrument. In such cases the infirmities inhering in the execution of the mortgage can be shown only ■upon a direct attack upon its validity, by which is intended some proceeding begun and prosecuted for the express' purpose of having the conveyance adjudged void and cancelled, as, for instance, a bill in chancery setting up the facts as to the notary’s incapacity, and praying that the alleged deed. be decreed to be surrendered up and cancelled, etc., and until cancellation is decreed in such, or other direct proceedings, the conveyance will be treated by. all courts as valid and efficacious.” The appellee here insists upon a reconsideration by this court of the rule above laid down, and a departure from what was decided in that case1. We are quite clear as to the correctness of the law there de-. dared and adhere to what was there decided. The. trial court erred in refusing the general charge for the plaintiff, and in giving it for the defendants, and on the authority of Monroe v. Arthur, supra, the judgment appealed from will be reversed and the cause remanded.

Reversed and remanded.