Henderson v. Brunson

141 Ala. 674

• Court: Supreme Court of Alabama
• Decided: November 15, 1904
• Status: Published

Opinion

SHARPE, J.

Complainant and her husband, E. G. Brunson, conveyed a. tract of her land to L. Henderson by a deed containing warranties and a clause as follows: “In this convejmnoe I reserve the right to redeem within three years by paying this entry.” L. Henderson died and this suit was brought against his heirs to have the deed cancelled on the alleged ground that it was intended, as a mortgage to secure a debt of E. G. Brun-son, and is therefore void under § 2529 of the Code, which declares “the wife shall not, directly or indirectly become the surety for the husband.”

The chancellor found the complainant was entitled to relief, and we think the legal evidence in the record supports that finding. In what we have termed legal evidence, the testimony of McCollough to effect that he “understood from both Mr. and Mrs. Brunson that they were executing the instrument as a formal security for Mr. Brunson’s indebtedness to Henderson,” is not included, that being but the expression of a conclusion derived from ex parte statements of complainant and her husband. Nor does the legal evidence include testimony of complainant as to transactions had with Henderson in his lifetime. She being interested in the result of the suit, was under § 2765 of the Code, as amended b3r the act of February 10, 1901, incompetent to give such testimony against the objections made. As to those transactions E. N. Brunson-Ayas under § 1794 of the Code competent to testify. Not being a party to* the suit, no right or liability of his could have been affected by the result thereof. Success in the suit by complainant would not have enured to his benefit, since under existing statutes a husband is given no use or other right in the lands of his Avife, and she may by her last will so dispose of the same as to prevent the descent to him at her death, of any estate in such lands. Such expectation as lie may have depended upon the death of the Avife, is analagous to that of an heir expectant, which, as held in Harraway v. Harraway, 136 Ala. 499, does not give rise to incompetency in a Avitness. The evidence including the testimony of E. G. Brunson and the recital. above quoted from the deed leads fairly to the conclusion that the land originally belonged to complainant ; that the debt due Henderson Avas the debt of E. G. Brunson, and that the purpose of the instrument sought to be cancelled Avas to convey the land, not in payment of the debt. That this Avas so is not really inconsistent AA’itli that part of tin* evidence AAdiich tends to sIioav that upon the execution of the deed, Henderson delivered to E. G. Brunson his bond to convey the. land back to complainant on payment of notes then executed by E. G. Brunson in the name of himself and complainant for amounts aggregating the amount of liis debt Avith recitals that they were given for land. The transaction taken as a ivliole may have been, and AA-e think, is proven to have been but an indirect provision for securing E. G. Brunson’s debt with complainant’s property, and such being the conclusion, she Avas entitled to relief. — McNeil v. Davis, 105 Ala. 657; Giddens v. Powell, 108 Ala. 621; Osborne v. Cooper 113 Ala. 405.

Decree affirmed.