Lunsford v. Harrison

• Citation: 131 Ala. 263,31 So. 24
• Parties: LUNSFORD v. HARRISON.
• Decision Date: 27 November 1901
• Court: Alabama Supreme Court

31 So. 24

131 Ala. 263

LUNSFORD v. HARRISON.

Supreme Court of Alabama

November 27, 1901

Appeal from chancery court, Jefferson county; John C. Carmichael Chancellor.

Action by Susan Lunsford against Charles C. Harrison. Judgment for defendant, and plaintiff appeals. Affirmed.

Sam'l Will John, for appellant.

Cabaniss & Weakley, for appellee.

DOWDELL J.

Susan Lunsford and her husband each owned in their respective rights vacant lots on Twenty-First street, between Second and Third avenues, in the city of Birmingham, Ala. These lots were contiguous and adjacent to each other. On these lots her said husband, George Lunsford, built a large brick hotel known as the "Lunsford Hotel." On this property the appellant Susan Lunsford and her husband gave to appellee a mortgage to secure the payment of the loan of $25,000 made by appellee. The present bill was filed by Susan Lunsford on July 28, 1895, seeking to have said mortgage executed by her and her husband on their property canceled in so far as it covers her portion of the said property, upon the ground, as alleged in her bill, that she executed the mortgage merely as a surety for her husband, George Lunsford. The cause was submitted upon the pleadings and proof for final decree, and upon the chancellor's finding upon the facts he dismissed complainant's bill, and from this decree the present appeal is prosecuted.

The question here presented is purely one of fact. The law of the case is simple and without trouble. If the complainant executed the mortgage merely as surety for her husband in obtaining the loan, then, under the statute which provides that the wife shall not become surety for her husband, the mortgage as to her would be null and void. The defendant denies the allegations of the bill upon which complainant rests her equity and claim for relief, and upon this issue so made, the burden of proof is upon the complainant. Gafford v. Speaker, 125 Ala. 498, 27 So. 1003; Hamil v. Mortgage Co. (Ala.) 28 So. 558.

The complainant relied upon her own testimony, given in two separate depositions, and the testimony of her son-in-law, J. R. Copeland, and her son, W. G. Lunsford. The last two named witnesses did not claim to have any personal knowledge as to how and between whom the loan was made, and their testimony simply tended to show that Mrs. Lunsford did not need the money, and that Mr. Lunsford did need it, and that he used it after it was borrowed. If the loan in fact was a joint loan to Mrs. Lunsford and her husband, it is wholly immaterial and unimportant whether Mrs. Lunsford needed the money, or whether Mr. Lunsford used it after it was borrowed. Mortgage Co. v. Thornton, 108 Ala. 258, 19 So. 529, 54 Am. St. Rep. 148; Gafford v. Speaker, supra; Hamil v. Mortgage Co., supra. And in this connection it may be further stated that it is unimportant whether the application for the loan was made orally or in writing, or whether Mr. and Mrs. Lunsford were both present at the time the application was made for the loan, if the application as made was for a joint loan, and a joint loan in fact was made.

The defendant, in support of his answer, gave his own deposition and had examined as witnesses in his behalf B. Steiner and J. W. Bush, who were instrumental in securing the loan for the borrowers; and he also offered in evidence the bonds and coupons evidencing the loan, the mortgage securing the same, the abstract of title, the opinion of J. W. Bush, an attorney at law, on the title, a receipt for the money borrowed, signed by the complainant and her husband, and certain letters which she had written. The evidence, without conflict, shows that the defendant, Harrison, at the time the loan was made by him, in 1892, resided, and still resides, in the city of Philadelphia, Pa., and he has never been to Birmingham. The complainant, Mrs. Lunsford, never saw him, and the loan in question was obtained by Steiner Bros., of Birmingham, and by J. M. Gummey & Sons, of Philadelphia, their associates, both of whom were employed and paid by the Lunsfords. B. Steiner testifies, and there is no contradiction, that, about June or July of 1892, Mr. George Lunsford came to the bank, and asked him if he could obtain a loan for himself, Lunsford, and his wife on some property on Twenty-First street, between Second and Third avenues, to be known as the "Lunsford Building," and which is the property here in controversy; that he informed Mr. Lunsford that he did not have any one right...