American Freehold Land Mortgage Co. v. Thornton

• Decision Date: 14 January 1896
• Citation: 19 So. 529,108 Ala. 258
• Parties: AMERICAN FREEHOLD LAND MORTGAGE CO. v. THORNTON ET UX.
• Court: Alabama Supreme Court

19 So. 529

108 Ala. 258

AMERICAN FREEHOLD LAND MORTGAGE CO. v. THORNTON ET UX.

Supreme Court of Alabama

January 14, 1896

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

Action by the American Freehold Land Mortgage Company against W. G Thornton and Mary J. Thornton. Decree for defendants, and plaintiff appeals. Reversed.

The bill in this case was filed by the appellant, the American Freehold Land Mortgage Company, for the purpose of having foreclosed a mortgage which had been executed to it by William G. Thornton and his wife, Mary J. Thornton. It was alleged in the bill that the defendants, William J. Thornton and M. J. Thornton, made application to the Loan Company of Alabama for the purpose of getting said company to negotiate a loan of money to the applicants, to be secured by a mortgage upon their lands; that in response to said application the Loan Company of Alabama, as the agent of the said Thornton, negotiated with the complainant a loan; that this loan was secured by a mortgage properly executed by W G. and M. J. Thornton, with certificates of acknowledgment of the mortgagors, and with additional certificates that Mary J Thornton was examined separate and apart from her husband and acknowledged that she executed the conveyance without fear, threat, or constraint on the part of her husband; that there had been default in the payment of the mortgage debt and that, therefore, the bill was filed to foreclose the mortgage, as was provided for in certain of its stipulations. It was further averred in the bill that, to secure the payment of commissions due to the Loan Company of Alabama for negotiating said loan as the agent of W. G. and M. J. Thornton, the latter executed to said loan company a mortgage which was subordinate to the mortgage given the complainant. W. G. and M. J. Thornton and the Loan Company of Alabama were made parties defendant. The Loan Company of Alabama filed its answer, admitting the allegations of the complainant's bill, and asked that its answer be taken as a cross bill, and that upon the final hearing of the cause it be decreed that the Loan Company of Alabama have a second lien upon the lands of W. G. and M. J. Thornton, and that, after a reference to the register to ascertain the respective interests of the parties, the lands be sold under said mortgages. M. J. Thornton filed her answer to the bill, in which she alleged that the mortgages which were sought to be foreclosed by the original bill and the cross bill conveyed lands, a part of which was the homestead of herself and husband, and the other portion was the separate estate of said respondent, M. J. Thornton; that she did not execute said mortgages voluntarily, but through fear of her husband; that she never acknowledged such an execution before J. W. V. Manghen, who, as notary public, certified such acknowledgment; and that she was never asked by said Manghen, or any one else, either separate and apart from her husband, or otherwise, as to her signature to said mortgages. It was further averred in said respondent's answer that she never employed the Loan Company of Alabama to negotiate a loan for her, nor did she employ J. W. V. Manghen as her agent to correspond with the Loan Company of Alabama for the purpose of making said loan, and that, in all these transactions, Manghen and the Loan Company of Alabama acted as the agents of the complainant in the original bill, as they were employed to do by said complainant. This respondent averred in her answer that she never received any of the money from said loan, but that the same was used and squandered by her husband and J. W. V. Manghen, the agent of the complainant. W. G. Thornton, in his answer to the original and cross bills, denied the employment of Manghen, or of the Loan Company of Alabama, as his agent to negotiate the loan, and to secure which the mortgage to the...