Boatright v. Fennell

• Decision Date: 16 April 1925
• Docket Number: 8 Div. 670
• Parties: BOATRIGHT v. FENNELL.
• Court: Alabama Supreme Court

104 So. 1

213 Ala. 10

BOATRIGHT v. FENNELL.

8 Div. 670

Supreme Court of Alabama

April 16, 1925

Appeal from Circuit Court, Colbert County; Charles P. Almon, Judge.

Bill to foreclose mortgage by Lula Mae Boatright against John Fennell, as administrator of the estate of Z.T. Higdon, and another, and cross-bill by the administrator. From a decree denying relief, complainant appeals. Reversed and remanded.

James Jackson, of Tuscumbia, and E.W. Godbey, of Decatur, for appellant.

Kirk &amp Rather, of Tuscumbia, for appellee.

THOMAS J.

The bill was for foreclosure. The administrator of the mortgagor filed answer and cross-bill seeking relief as to other lands not described in the bill, but embraced in the mortgage sought to be foreclosed. The prayer of the cross-bill was to set aside a deed to lands not embraced in the foreclosure prayed for by the bill, or to be allowed to redeem all the lands covered by the mortgage, and therefore those embraced in the deed sought to be set aside on the ground of fraud or undue influence.

The decree rendered dismissing complainant's bill, among other things, said of the deed, the subject of one phase of the cross-bill:

"It is insisted by respondents in their answer and cross-bill filed February 8, 1923, that decedent at the time of executing the deed to complainant was unable to pay interest on the mortgage debt, and complainant, by the power she had over him in being the owner of the mortgage, caused the conveyance to be made to her of the equity of redemption in the most valuable part of the property; that the deed should be set aside and the administrator as the representative of the creditors be permitted to redeem the property by paying the debt with accrued interest.

"On due consideration of all the legal evidence, the court is of the opinion the conveyance of May 7, 1918 conveying to complainant a part of the property mortgaged was intended by decedent as a discharge of his liability under the mortgage.

"It is therefore ordered, adjudged, and decreed that complainant in this cause is not entitled to the relief prayed; that the debt secured by said mortgage was discharged by the conveyance of May 7, 1918." The mortgage was of date February 10, 1914, to S.M. Hall, as guardian, and the note and mortgage were transferred and assigned to complainant June 14, 1916; she paying the amount of the principal and accrued interest thereon. The foregoing is averred in the bill as amended. In the third paragraph thereof it is averred that--

"The said lands were owned and possessed by Z.T. Higdon at the time of his death, save and except that part described as follows: Beginning at the northwest corner of said four-acre tract, at a point on the Tuscumbia and Courtland road where the tract joins the land formerly owned by Mrs. Jane Higdon, thence east along said road three chains and fifty-four links, thence south to the lands of J.H. Puller, thence west to the lands formerly owned by Mrs. Jane Higdon, thence north to the point of beginning, being the west part of said parcel as shown on the above map. The last-named land having been conveyed by Z.T. Higdon many years before his death to the complainant, and later, on May 7, 1918, he made another conveyance to her, stating that he wanted to make a more perfect or better description. The said Z.T. Higdon also owned at the time of his death the north 1/2 of the southwest 1/4, less three acres, of section 35, township 4, range 10, in said county."

This averment is admitted in the answer and cross-bill, saying: "3. The allegations in paragraph 3 of the bill are admitted to be true." When material averments are admitted in pleading, they need not be proven. The evidence shows the first deed (1913) conveyed the same lands as the last deed to complainant of date May 7, 1918--though description was changed from that designated by a row of pear trees to the calls of a survey--courses and distances. The 1913 deed was delivered to grantor when he executed that of May 7, 1918. The recited consideration of both deeds was "love and affection." The testimony shows there was no contradiction in the two instruments. The evidence shows there was no payment of the Hall note and mortgage; and there was no proof of any fraud or undue influence practiced or exerted by complainant over the mortgagor and grantor--her father. The execution of the deeds, note, and mortgage was not denied; nor was the consideration of either instrument denied.

Appellee urges, in support of the decree, that the conveyance of Mr....