American Mortg. Co. of Scotland v. King

• Decision Date: 16 January 1895
• Parties: AMERICAN MORTG. CO. OF SCOTLAND, LIMITED, ET AL. v. KING.
• Court: Alabama Supreme Court

16 So. 889

105 Ala. 358

AMERICAN MORTG. CO. OF SCOTLAND, LIMITED, ET AL. v. KING.

Supreme Court of Alabama

January 16, 1895

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

Bill by George W. King against the American Mortgage Company of Scotland, Limited, and another. There was a decree for complainant, and the defendants appeal. Reversed.

The prayer of the bill was to cancel two separate mortgages executed by the complainant and his wife to the respective respondents, as clouds on the title of the complainant. The bill averred that the mortgage executed to the American Mortgage Company of Scotland, Limited, was given to secure the payment of a loan of money by said company to the complainant, to wit, $525, and that the mortgage to the Loan Company of Alabama was given to secure the payment of certain notes which were given by the complainant to the loan company for the negotiation of a loan with the American Mortgage Company of Scotland, Limited. It was further averred in the bill that this loan was negotiated by one J. W. V. Manghen who, as the bill avers, was the resident agent of the loan company in Dale county, for the purpose of negotiating loans for it and its correspondents; that after the execution of the mortgage by the complainant the money was paid to the said Manghen, but was never delivered to the complainant by him. It was also averred in the bill that the acknowledgment by the husband and wife to the execution of the mortgage was not made before an officer authorized to take and certify such acknowledgment. The answer of the respondents denied these allegations of the bill, and set up that the said J. W V. Manghen was duly appointed by the complainant as his agent for the purpose of conducting the correspondence and negotiating the loan for him with the Loan Company of Alabama. There was attached as an exhibit to the answer of the respondents a written instrument, duly signed by the complainant, which, after reciting that he had made application to the loan company for the negotiation of a loan, and the terms thereof, contains the following stipulation: "I agree to pay J. W. V. Manghen, of Dale county, Alabama, as my attorney, fifteen dollars, as a reasonable fee for taking this application, conducting the correspondence, and making complete abstracts of titles to my lands, and securing and paying over the money, and all such work in connection with this loan." The evidence for the plaintiff was to the effect that he considered J. W. V. Manghen as the agent of the loan company, and that, as such agent, the money which he had agreed to borrow was delivered to him (said Manghen), who failed to deliver any of it to the complainant. The evidence for the respondents was that the money which the complainant had borrowed through the Loan Company of Alabama from the American Mortgage Company of Scotland, Limited, was paid over to said J. W. V. Manghen as the agent of the complainant. On the final submission of the cause on the pleadings and proof, the chancellor decreed that the complainant was entitled to the relief prayed for in his bill, and ordered that the mortgages described in the bill of complaint be set aside and annulled as clouds on the title of complainant. The respondents appeal, and assign as error this decree of the chancellor.

M. E Milligan, for appellants.

H. L Martin, for appell...