Braun v. Pettyjohn

• Decision Date: 30 May 1912
• Parties: BRAUN v. PETTYJOHN ET AL.
• Court: Alabama Supreme Court

58 So. 907

176 Ala. 592

BRAUN v. PETTYJOHN ET AL.

Supreme Court of Alabama

May 30, 1912

Appeal from Chancery Court, Jefferson County; A. H. Benners Chancellor.

Action by Caroline Braun against L. G. Pettyjohn and others. From the decree, complainant appeals. Reversed and remanded.

George Huddleston and A. Leo Oberdorfer, both of Birmingham, for appellant.

L. J Haley, of Birmingham, for appellees.

SIMPSON J.

The bill in this case is by the appellant to foreclose a mortgage executed by the defendant Louis Braun (who is complainant's husband), and joined in by complainant, to Elizabeth Biehl, who was complainant's mother. The mortgage was executed on July 16, 1890, to secure a note previously made, to wit, October 25, 1886, and payable October 25, 1887. No law day is fixed in the mortgage, but it is simply conditioned on the payment of the debt. On April 1 1891, the property in question was sold by said Louis Braun, and conveyed by deed executed by himself and wife, to the defendant L. G. Pettyjohn, which deed recites that the property "herein conveyed being subject to a mortgage executed by the undersigned grantors in favor of E. Biehl, to secure the payment of an indebtedness of $1,500.00." The bill in this case was filed on July 14, 1910. It appears from the bill and the evidence that said Elizabeth Biehl died in 1895, and, there being no debts and no administration, the heirs distributed the property among themselves, in which distribution the mortgage in question was allotted to the complainant and became her property. Said Louis Braun testified that he had never paid anything on said mortgage indebtedness. The note for the securing of which said mortgage was executed was placed in evidence, showing that the writing and signature have been overrun by heavy lines with a pen, which, according to the testimony of the complainant, was done by her said husband, without her knowledge or consent, after the note came into her possession.

It is true that, according to numerous decisions of this court, 20 years has been fixed as the period of prescription, after which mortgages upon which there had been no payment, or other acknowledgment, will be presumed to have been paid, and claims of every kind will be presumed to have been settled. McArthur v. Carrie's Adm'r, 32 Ala. 76, 89, et seq., 70 Am. Dec. 529; Harrison et al. v. Heflin, Adm'r, et al., 54 Ala. 553, 563; Coyle v. Wilkins et al., 57 Ala. 108, 111; Bailey et al. v. Butler, 138 Ala. 153, 156, 35 So. 111; Eliza Snodgrass v. John A. Snodgrass, 58 So. 201, and cases cited.

As will be seen from an examination of the cases, this prescription is predicated on the fact that there has been no payment on or acknowledgement of, the mortgage during that period. While the chancellor does not write any opinion, and the appellee has filed no brief, yet we infer from the references in the brief of the appellant that the idea prevailed that the 20-year period in this case commenced with the...