Burgess v. Blake

• Decision Date: 13 November 1900
• Citation: 128 Ala. 105,28 So. 963
• Parties: BURGESS ET AL. v. BLAKE ET UX.
• Court: Alabama Supreme Court

28 So. 963

128 Ala. 105

BURGESS ET AL. v. BLAKE ET UX.

Supreme Court of Alabama

November 13, 1900

Appeal from chancery court, Mobile county; Thomas H. Smith, Judge.

Action by D. R. Burgess & Co. against E. E. Blake and wife to foreclose a mortgage. From a decree excluding certain lands described in the mortgage from the foreclosure, plaintiffs appeal. Reversed.

The bill in this case was filed by the appellants, D. R. Burgess & Co., against the appellees, E. E. Blake and C. E. Blake and sought to foreclose a mortgage executed by the defendants, and embracing certain lands in Baldwin county Ala. The bill averred the execution of a mortgage by E. E Blake and his wife, C. E. Blake, and attached the same as an exhibit. It was further averred that there had been default made in the payment of the mortgage debt, and the prayer of the bill was that an accounting be had to ascertain what was due thereon, and for a foreclosure of the mortgage. The mortgage was signed by E. E. Blake and C. E. Blake. There were two certificates of acknowledgment made before a justice of the peace. The first was that in reference to the signature of E. E. Blake and his wife, C. E. Blake, and the second was the acknowledgment of the wife separate and apart from her husband. The answer of both of the respondents, in so far as they affect this appeal, admit the making of the mortgage, and set up that the mortgage was made to secure a debt of E. E. Blake, and that certain of the lands embraced in the mortgage belonged to C. E. Blake, the wife, and that therefore, the mortgage was void as to the lands of C. E. Blake embraced therein. By agreement the testimony was taken orally. The complainants proved the execution of the mortgage, and that the mortgage debt had not been paid. In order to prove that some of the lands included in the mortgage belonged to Mrs. C. E. Blake, the defendants examined E. E. Blake as a witness, and he testified that the lands referred to did belong to his wife. This testimony of E. E. Blake was objected to, and the objection was sustained by the chancellor. For the purpose of proving that said lands belonged to Mrs. C. E. Blake, the defendants introduced a certified deed from one Dreisback to C. E. Blake, which deed embraced that part of the lands in controversy. The introduction of this certified copy was objected to on the ground that it was secondary evidence, and on the further ground that it was immaterial and irrelevant. This objection to the evidence was overruled, and the testimony was admitted. In order to prove that another portion of the lands included in the mortgage belonged to Mrs. C. E. Blake, the defendants introduced in evidence a deed made by the defendant E. E. Blake to C. E. Blake conveying said lands. To the introduction of this deed the complainants objected on the ground that the same was in a mutilated condition, and showed material alterations on its face, and upon the further ground that the same was immaterial and irrelevant. This objection was duly taken during the time of taking the testimony of the defendant E. E. Blake. The objection was overruled. The court admitted these two deeds in evidence. The other facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion. Upon the final submission of the cause the chancellor decreed that the complainants were entitled to the foreclosure of their mortgage, but excluded from the decree of foreclosure the lands shown by the deeds in evidence to belong to Mrs. C. E. Blake. From this decree the complainants appeal, and assign the rendition thereof as error.

T. M. Stevens, for appellants.

John R. Tompkins, for appellees.

SHARPE J.

Since the statute in effect inhibits the mortgaging of the wife's property as security for her husband's debt it will not, in the absence of evidence, be presumed that a mortgage which, on its...