Sibert v. Hughes

Supreme Court of Alabama

Sibert v. Hughes

56 So. 1012, 174 Ala. 426, 1911 Ala. LEXIS 380

DecidedNovember 29, 1911

StatusPublished

This text of 56 So. 1012 (Sibert v. Hughes) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Sibert v. Hughes, 56 So. 1012, 174 Ala. 426, 1911 Ala. LEXIS 380 (Ala. 1911).

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Opinion

ANDERSON, J.

The undisputed evidence shows that Mrs. Hughes, the wife, owned the N. W. % of the N. E. % of section 21, and, while her testimony and that of her husband as to transactions with the deceased mortgagee should be excluded, there remains enough competent evidence to show that the mortgage was given to secure the debt of the husband, and to overcome the mere recital in the mortgage of a joint indebtedness.

The testimony of Riley Roberts was not forbidden by section 4007 of the Code of 1907. In the first place, it does not appear with any degree of certainty his father was a surety for the debt in question. Hughes does testify that the elder Roberts was his surety for the debt contracted; but he does not appear as a signer of the note and mortgage involved. * But, if his estate is responsible to Sibert for the debt in question, the testimony of Riley Roberts is more hostile than favorable to the interest of his father’s estate, as it tends to increase, rather than lessen, the responsibility of said estate for the payment of the debt. His testimony goes to show that the land of Mrs. Hughes was not liable for said debt, and, if her land is not made ansAverable for same, the result increases the liability of his father’s estate for said Sibert debt.

The mortgage on the wife’s land, being given to secure the debt of her husband, was invalid. — Section 4497 of the Code of 1907, and numerous cases there cited.

We cannot put the trial court in error for failure to decree a foreclosure as to the other land, even if the mortgagors were estopped from denying that it belonged to the one, or the other, or both, for the reason that the bill does not attempt to deal with said land. It really charges ownership in only 20 acres (the S. % of [430]*430the N. E. 1/4 of S. E. % of section 21), and by paragraph 3 sets np an adverse claim to only 40 acres, as claimed by Bellinger, and nowhere seeks relief or a foreclosure as to any other land and which said question was mot considered by or brought to the attention of the city court.

The decree of the city court is affirmed.

Affirmed.

All the Justices concur, except Dowdell, C. J., not sitting.

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ANDERSON, J.

The undisputed evidence shows that Mrs. Hughes, the wife, owned the N. W. % of the N. E. % of section 21, and, while her testimony and that of her husband as to transactions with the deceased mortgagee should be excluded, there remains enough competent evidence to show that the mortgage was given to secure the debt of the husband, and to overcome the mere recital in the mortgage of a joint indebtedness.

The testimony of Riley Roberts was not forbidden by section 4007 of the Code of 1907. In the first place, it does not appear with any degree of certainty his father was a surety for the debt in question. Hughes does testify that the elder Roberts was his surety for the debt contracted; but he does not appear as a signer of the note and mortgage involved. * But, if his estate is responsible to Sibert for the debt in question, the testimony of Riley Roberts is more hostile than favorable to the interest of his father’s estate, as it tends to increase, rather than lessen, the responsibility of said estate for the payment of the debt. His testimony goes to show that the land of Mrs. Hughes was not liable for said debt, and, if her land is not made ansAverable for same, the result increases the liability of his father’s estate for said Sibert debt.

The mortgage on the wife’s land, being given to secure the debt of her husband, was invalid. — Section 4497 of the Code of 1907, and numerous cases there cited.

We cannot put the trial court in error for failure to decree a foreclosure as to the other land, even if the mortgagors were estopped from denying that it belonged to the one, or the other, or both, for the reason that the bill does not attempt to deal with said land. It really charges ownership in only 20 acres (the S. % of [430]*430the N. E. 1/4 of S. E. % of section 21), and by paragraph 3 sets np an adverse claim to only 40 acres, as claimed by Bellinger, and nowhere seeks relief or a foreclosure as to any other land and which said question was mot considered by or brought to the attention of the city court.

The decree of the city court is affirmed.

Affirmed.

All the Justices concur, except Dowdell, C. J., not sitting.

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Bluebook (online)

56 So. 1012, 174 Ala. 426, 1911 Ala. LEXIS 380, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sibert-v-hughes-ala-1911.