Alston v. Marshall

• Decision Date: 12 November 1896
• Citation: 112 Ala. 638,20 So. 850
• Parties: ALSTON ET AL. v. MARSHALL ET AL.
• Court: Alabama Supreme Court

20 So. 850

112 Ala. 638

ALSTON ET AL. v. MARSHALL ET AL.

Supreme Court of Alabama

November 12, 1896

Appeal from chancery court, Barbour county; Jere N. Williams Chancellor.

Suit by Robert N. Alston and others against E. C. Marshall and others to enjoin sale of land mortgaged to said Marshall, and to establish a trust therein in favor of complainants. Decree for respondents. Complainants appeal. Affirmed.

S. H Dent, Jr., for appellants.

A. H Merrill, for appellees.

COLEMAN J.

Several questions have been argued by counsel in this case, which we deem unnecessary to consider in arriving at a proper conclusion. The bill avers that about $800 of complainants' money, in the hands of their father, and held by him in trust, was invested by him in a certain tract of land, the title to which was taken in his name. Subsequently he executed a mortgage on the land to the respondent E. C. Marshall, to secure a loan of money. The bill avers that before the execution of the mortgage the respondent E. C. Marshall had notice of the equitable claim of complainants in and upon the land. For the purposes of the case, we concede that the money invested in the land belonged to complainants, and was held by their father as averred in the bill. The answer of the respondent admits that she holds the mortgage given to secure a loan of money. The answer denies specifically and positively all notice or knowledge of the equitable claim of complainants, or that she had any notice or knowledge that any part of their money had been invested in the purchase of the land, either at the time of the loan of the money or at the time of the execution of the mortgage. The issue made by the pleadings is thus narrowed down to notice to the mortgagee of the claim of the complainants.

The burden of proving notice is upon complainants. On this question the complainants examine but one witness,-their father. He swears positively that when he borrowed the money from Mrs. Marshall he gave her notice of the interest of the minor children. He does not testify that he gave her notice at the time of the execution of the mortgage, but "at the time he borrowed the money, which was about a year before he made the mortgage." The evidence leaves no doubt on our minds that in this the witness was mistaken. It seems fully established by disinterested witnesses that the borrower did not see Mrs. Marshall at the time of the loan, and that the loan was effected through Mr. Cary, an agent of Mrs. Marshall. This agent swears that he had no notice of the claim of complainants until after December 1, 1893, nearly a year after the execution of the mortgage. Complainants have clearly failed to establish notice as averred in their bill.

It is contended in the brief of counsel for appellants that the facts show that the loan was made at a usurious rate of interest, and for this reason the mortgagee cannot claim the protection of an innocent purchaser. There...