Abney v. Abney

• Decision Date: 24 April 1913
• Citation: 182 Ala. 213,62 So. 64
• Parties: ABNEY et al. v. ABNEY.
• Court: Alabama Supreme Court

62 So. 64

182 Ala. 213

ABNEY et al. v. ABNEY.

Supreme Court of Alabama

April 24, 1913

Appeal from Chancery Court, Marshall County; W.H. Simpson Chancellor.

Mortgage foreclosure suit by Mary A. Abney against George W. Abney and others. From a decree for complainant, defendants appeal. Affirmed in part, and reversed and remanded in part.

Complainant filed her bill of complaint praying for the foreclosure of a certain mortgage written by her husband, B.D. Abney, on his homestead and transferred by the mortgagee to complainant. Five of the respondents, children of the husband by a former marriage, filed their answer and cross-bill, praying, among other things, that said mortgage be canceled as a cloud on their title and that their title be quieted as to the interest therein conveyed, and also for general relief. The undisputed facts are as follows: Mary and B.D. Abney were married in 1852, and on January 17, 1902, there were three living children, the issue of their marriage. B.D. Abney had also five other living children, the issue of a former marriage. On the date named, January 17th, for the purpose of settling differences between them, including the withdrawal of a pending divorce suit filed by Mary A., a joint written agreement was entered into by which B.D. Abney conveyed to her a life interest in an undivided three-eighths of his homestead of 120 acres, and of his personal estate valued at about $1,000, with provision that upon her death her specified interest should vest in their three children absolutely. With respect to the remaining five-eighths interest in the property, the instrument contains the following reference and provision: "In the event of the death of B.D. Abney before that of the said Mary Abney, his undivided five-eighths interest in and to said personal property is to immediately descend to his children by a former wife, now deceased, or to their descendants, without any claim thereto, on the part of the three children of the said Mary Abney, or the said Mary Abney above mentioned, and at the death of the said Mary Abney in the event of her surviving the said B.D. Abney, his undivided five-eighths interest in and to the real estate in question is to descend and belong to their descendants by said former wife, free from any claim or interest of the said three children of the said Mary Abney above mentioned thereto or therein." In October, 1907, B.D. and Mary Abney executed a mortgage deed on the homestead property to secure a recited indebtedness of $1,000 to Joe L. Henry. B.D. died some eight months later and on February 26, 1909, Mary A. received from the mortgagee a written transfer of the mortgage for the recited consideration of $170 paid by her in October, 1908, and $531.20 paid February 26, 1909. There is no question but what about $600 was due on this mortgage and that Mary A. paid it. The excess of that amount going to pay a contemporaneously executed chattel mortgage from B.D. to said Henry, which was also transferred at the same time by the mortgagee, and upon the same recited consideration. The respondents to the original bill are eight children, and the complainants in the cross-bill are the five children of a former marriage. The chancellor held that a deed of settlement between complainants and her husband left the title to five-eighths of the property in the husband, and did not pass any title to the cross-complainant, and further that complainant was the owner of the homestead mortgage by assignment, and was entitled to enforce it against the homestead property subject to her own homestead claim, and subject also to set-off in favor of cross-complainants growing out of complainant's conversion of their interest in the personal estate. The other matters sufficiently appear in the opinion.

Street & Isbell, of Guntersville, for appellants.

John A Lusk, of Guntersville, for appellee.

SOMERVILLE J.

The deed of settlement between Mary A. Abney and her husband cannot be construed as a conveyance of a five-eighths interest in his homestead to his five children by a former marriage. On the contrary, after granting a three-eighths interest in the property to her for life, with remainder to her three children, he in terms retained the title to the residue in himself, with provision that after her death, if she survived him, such residue ("his five-eighths interest") should descend to said five children, free from any claim or interest of her three children. Hence the chancellor correctly ruled that the mortgage given on the homestead by the husband...