Blair v. Jones, 4 Div. 760
| Court | Supreme Court of Alabama |
| Writing for the Court | THOMAS, J. |
| Citation | 78 So. 69,201 Ala. 293 |
| Parties | BLAIR et al. v. JONES et al. |
| Decision Date | 14 February 1918 |
| Docket Number | 4 Div. 760 |
78 So. 69
201 Ala. 293
BLAIR et al.
v.
JONES et al.
4 Div. 760
Supreme Court of Alabama
February 14, 1918
Appeal from Circuit Court, Pike County; A.B. Foster, Judge.
Bill by Sallie Blair and others against Louvenia Jones and others to cancel a mortgage. Decree for defendants, and plaintiffs appeal. Affirmed. [78 So. 70]
C.C. Brannen, of Troy, for appellants.
A.G. Seay, of Troy, for appellees.
THOMAS, J.
The bill was submitted for final decree without being tested by demurrer. Under the pleading and the proof it is the duty of the court to grant such relief as justice and equity may require. Code, § 3212; Stewart v. Snider, 72 So. 409; Zadek v. Burnett, 176 Ala. 80, 57 So. 447; Teal v. Pleasant Grove Local Union, 75 So. 335, 337.
It is not necessary that we decide whether the bill was multifarious, no demurrer having been interposed on that ground. Hitt Lumber Co. v. Cullman Property Co., 189 Ala. 13, 66 So. 720; Smith v. Young, 173 Ala. 190, 55 So. 425; Henry v. Tennessee Live Stock Co., 164 Ala. 376, 50 So. 1029; Ford v. Borders et al., 75 So. 398; Cullman Property Co. v. Hitt Lumber Co., 77 So. 574. The testimony not having been taken orally in open court, no presumptions are indulged as to the findings of fact on which the decree is based. Andrews v. Grey, 74 So. 62; Code, § 5955, subhead 1; Gen.Acts 1915, p. 705.
The question for decision, as stated by appellants' counsel, is, the correctness of the court's decree "only as to the failure to cancel the mortgage," that given June 16, 1915, by Pete and Sallie Blair to A.G. Seay. The grounds on which the mortgage is attacked, and which we will consider, are: (1) That the grantor, Pete Blair, was of unsound mind at the time of the execution of the mortgage; (2) that there was no consideration for the mortgage.
The burden of proving the material averments of a bill rests on the complainant. City of Mobile v. Chapman, 79 South. ----. "Reason, being the common gift to man, raises the general presumption that every man is in a state of sanity, and that insanity ought to be proved, and in favor of liberty and of that dominion which, by the law of nature, men are entitled to exercise over their own persons and properties. It is a presumption of the law *** that every person who has attained the usual age of discretion is of sound mind until the contrary is proved." Eastis v. Montgomery, 95 Ala. 486, 11 So. 204, 36 Am.St.Rep. 227; Cotton v. Ulmer, 45 Ala. 378, 397, 6 Am.Rep....
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Ray v. Watkins, 6 Div. 920
...Co. v. Donald & Co., 200 Ala. 638, 77 So. 12; State v. T.J. Mattox Cigar & Tobacco Co., 201 Ala. 229, 77 So. 755, 756; Blair v. Jones, 201 Ala. 293, 78 So. 69; Hess v. Hodges, 201 Ala. 309, 78 So. 85, L.R.A.1918D, 858; Faulkner v. Fowler, 201 Ala. 685, 79 So. 257; Barton v. Burton Mfg. Co.,......
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Clifford v. Montgomery, 7 Div. 981
...based on oral testimony, under construction of Code,§ 5955, subd. 1. Manchuria S.S. Co. v. Donald & Co., 77 So. 12; Blair v. Jones, 78 So. 69; Barton v. Burton Mfg. Co., 79 So. 664. The presumption as to findings of registers upon the oral examination of witnesses is that it is correct and ......
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Holman v. Harper, 6 Div. 887.
...of demurrer: 32 C.J. 748; Martin v. Cameron, 203 Ala. 548, 84 So. 270; Mitchell v. Baldwin, 154 Ala. 346, 45 So. 715; Blair v. Jones, 201 Ala. 293, 78 So. 69; Bell v. Burkhalter, 176 Ala. 62, 57 So. 460; McCarty-Greene Motor Co. v. McCluney, 219 Ala. 211, 121 So. 713; Owens v. Harris (Ala. ......
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Wood v. Foster, 5 Div. 185.
...as to the correctness of the findings of fact on which the decree is rested. Section 10276, subsec. 1, Code; Blair et al. v. Jones et al., 201 Ala. 293, 78 So. 69; Andrews et al. v. Grey, 199 Ala. 152, 74 So. 62; Hodge et al. v. Joy et al., 207 Ala. 198, 92 So. 171; Fies & Sons v. Lowery, 2......
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Ray v. Watkins, 6 Div. 920
...v. Donald & Co., 200 Ala. 638, 77 So. 12; State v. T.J. Mattox Cigar & Tobacco Co., 201 Ala. 229, 77 So. 755, 756; Blair v. Jones, 201 Ala. 293, 78 So. 69; Hess v. Hodges, 201 Ala. 309, 78 So. 85, L.R.A.1918D, 858; Faulkner v. Fowler, 201 Ala. 685, 79 So. 257; Barton v. Burton Mfg. ......
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Clifford v. Montgomery, 7 Div. 981
...based on oral testimony, under construction of Code,§ 5955, subd. 1. Manchuria S.S. Co. v. Donald & Co., 77 So. 12; Blair v. Jones, 78 So. 69; Barton v. Burton Mfg. Co., 79 So. 664. The presumption as to findings of registers upon the oral examination of witnesses is that it is correct ......
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Wood v. Foster, 5 Div. 185.
...as to the correctness of the findings of fact on which the decree is rested. Section 10276, subsec. 1, Code; Blair et al. v. Jones et al., 201 Ala. 293, 78 So. 69; Andrews et al. v. Grey, 199 Ala. 152, 74 So. 62; Hodge et al. v. Joy et al., 207 Ala. 198, 92 So. 171; Fies & Sons v. Lower......
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Fies & Sons v. Lowery, 6 Div. 254.
...indulged as to the findings of fact on which the decree is based. Andrews v. Grey, 199 Ala. 152, 74 So. 62; Blair et al. v. Jones et al., 201 Ala. 293, 78 So. 69; Code, § 10276, subsec. 1. The testimony is conclusive to the point that each of the two mortgages were actually signed by the co......