American Freehold Land Mortgage Co. v. James

Decision Date16 January 1895
PartiesAMERICAN FREEHOLD LAND MORTGAGE CO., LIMITED, v. JAMES ET AL.
CourtAlabama Supreme Court

Appeal from chancery court, Dale county; Jere N. Williams, Judge.

Action by the American Freehold Land Mortgage Company, Limited against John A. James and others, to foreclose a mortgage. From a decree that the mortgage was ineffectual to divest title as to part of the mortgaged premises, plaintiff appeals. Reversed.

The purpose of the bill was to foreclose a mortgage which had been executed by John A. James and Ella L. James, his wife to the complainant. It was averred in the bill that the mortgage was made to secure the payment of money which had been loaned by the complainant to the respondent John A James; that the mortgage was duly executed by the respondents; and that they separately acknowledged their respective execution before a notary public; and that he had attached a certificate of such acknowledgment to the mortgage. The mortgage was made an exhibit to the bill, and contained the certificate of acknowledgment of John A. James and also the certificate of the separate acknowledgment of his wife, Ella L. James, before J. W. V. Manghen, a notary public. The certificates of acknowledgment were signed by said Manghen in his official capacity. It was also averred in the bill that the respondents John A. James and his wife executed a second mortgage to the Loan Company of Alabama, which mortgage stated that it was to be subordinate to the one executed to the complainant. The loan company filed an answer, admitting the allegations of the bill, and prayed that its answer be taken as a cross bill, and its interest be preserved by the court. John A. James and his wife filed separate answers to the original bill and cross bill, in which they set up the defense that the mortgages were ineffectual to convey so much of the property as was owned and occupied by them at the time of the execution of the mortgage as their homestead, on the ground that no separate acknowledgment of the wife had been taken as required by law, nor had there been an acknowledgment of the husband taken, and that the certificates of acknowledgment which were attached to the respective mortgages were untrue. The other facts of the case are sufficiently stated in the opinion. Upon the final submission of the cause, the chancellor decreed that the mortgages to the original complainant and to the cross complainant were ineffectual "to divest the title out of the respondents John A. James and Ella James" as to so much of the property conveyed therein which was owned and occupied by them as their homestead. This decree is appealed from, and the same is here assigned as error.

Pettus & Pettus, M. E. Milligan, and W. R. Nelson, for appellant.

M. Sollie and W. D. Roberts, for appellees.

COLEMAN J.

The complainant filed the present bill to foreclose a mortgage executed by respondents James and wife to secure the payment of certain promissory notes given by the husband to effect a loan of money. The respondent the Alabama Loan Company answered, and by cross bill prayed for the foreclosure of a second mortgage given by James and wife upon the same land, to secure the payment of certain other promissory notes of the husband, payable to respondent. The lands mortgaged included the homestead of the husband. There was a demurrer to the original and cross bill, upon the ground that the wife of James was an improper party. No action was taken by the court upon the demurrer of respondents James and wife, and we presumed the parties waived their right to have the question adjudicated. On this question, see Grider v. Mortgage Co., 99 Ala. 281, 12 So. 775.

The only material question is whether there was a sufficient acknowledgment to the mortgage by the husband and wife to make it valid as a conveyance of the homestead. The acknowledgment by the husband and the wife, and certificate thereof, are in exact accordance with the statute. In the answer of the husband and the separate answer of the wife the signing of the mortgage is admitted, but each denies making any acknowledgment before the officer, and...

To continue reading

Request your trial
9 cases
  • Colburn v. Mid-State Homes, Inc.
    • United States
    • Alabama Supreme Court
    • September 21, 1972
    ...be regarded as a rule of property which it would be unwise and unsafe to disturb.' The situation presented in American Freehold Land Mortgage Co. v. James, 105 Ala. 347, 16 So. 887, is quite similar to that now before us. There it was admitted by James and his wife that the notary carried t......
  • Thompson v. New England Mortgage Security Co.
    • United States
    • Alabama Supreme Court
    • July 31, 1895
    ... ... action is statutory ejectment to recover possession of land ... The plaintiff in the court below offered in evidence a ... mortgage ... Our latest utterance ... upon this subject is in Mortgage Co. v. James (Ala.) ... 16 So. 887. It is not, however, everything which an officer ... ...
  • Smart v. Kennedy
    • United States
    • Alabama Supreme Court
    • June 15, 1899
    ... ... mentioned in the mortgage were, at the time of its execution, ... the homestead of ... land entered as a homestead by the grantor in the conveyance ... James ... Lang and William C. Swanson, for appellant ... ...
  • McIntyre v. White
    • United States
    • Alabama Supreme Court
    • November 29, 1899
    ...fraud or duress, but the certificates of acknowledgment of the officer are conclusive as to the facts therein stated. Mortgage Co. v. James, 105 Ala. 347, 16 So. 887. this case, there was no pretense of fraud or duress in procuring the signature of the wife, and there was no conflict in the......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT