Cheney v. Nathan

• Decision Date: 21 May 1896
• Citation: 20 So. 99,110 Ala. 254
• Parties: CHENEY v. NATHAN.
• Court: Alabama Supreme Court

20 So. 99

110 Ala. 254

CHENEY v. NATHAN.

Supreme Court of Alabama

May 21, 1896

Appeal from chancery court, Montgomery county; Jere N. WilliamsChancellor.

The bill in this case was filed by G. O. Janney and John C Cheney, as trustees of Moses Bros., against Emily T. Nathan under an act of the legislature of Alabama (Acts1892-93, p 42), to compel the determination of the claims of said Emily T. Nathan to the east half of lot No. 11, on the north side of Dexter avenue (formerly Market street), in the city of Montgomery.The bill avers that on the 17th day of July 1891, said Emily T. Nathan and her husband, Lewis W. Nathan executed to Sayre, Levin, and Snodgrass, the former trustees of Moses Bros., for the benefit of their creditors, a deed to said property.Said deed is attached as an exhibit to said bill, and shows that the same was executed for the sum of one dollar, and the "further consideration of said conveyance being in full settlement of all claims and demands to or from said grantors, or to said Moses Bros., on account of the property hereinafter conveyed."Said exhibit further showed that said deed was signed by said Emily T. Nathan and her said husband, Lewis W. Nathan, and had attached thereto the following acknowledgment: "State of Alabama.Montgomery County. I, N. B. Holt, a notary public in and for the said county, in said state, hereby certify that Emily T. Nathan and Lewis W. Nathan, her husband, whose names are signed to the foregoing conveyance, and who are known to me, acknowledged before me on this day that, being informed of the contents of this conveyance, they executed the same voluntarily, on the day the same bears date.Given under my hand, this, the 17th, day of July, 1891.N. B. Holt, Notary Public."The bill further avers that said Sayre, Levin, and Snodgrass had resigned, and complainants been appointed in their place; that complainants had received from said trustees a conveyance of said property.The bill contained all the averments as to possession, etc., required by the statute, and averred that said Emily T. Nathan claimed said deed to be void, because she alleged the property constituted her statutory separate estate under the laws of Alabama, and that only a nominal consideration was given for the same.The bill contained the prayer for relief provided in the statute.The said Emily T. Nathan answered this bill, admitting the execution of the said deed by her under the circumstances thereinafter set forth.She denied that said deed was ever executed by her husband, and that said deed was of any binding force upon her, or of any legal validity.She admitted that she was reputed to be the owner of said property, as averred in the bill.She averred that said property constituted her statutory separate estate, attaching as exhibits the conveyances by which it was acquired by her; that no consideration was ever paid her for said conveyance; and that the same was wholly voluntary."That she signed said deed solely and alone because of the importunities of her brothers, who composed the firm of Moses Bros., and yielding entirely to the influence exerted on her by them in that behalf, through her great affection and confidence in them.She avers, "upon information and belief," that her brothers, at the time of prevailing upon her to sign said deed, expected the assets of said firm to be sufficient for the payment of their debts, and that the said property would again come into their possession, and be restored to her, which expectation could not be realized.She further stated, "on information and belief," that her husband never executed said deed with respondent, and that the certificate of acknowledgment attached to said deed is not true as to her said husband; that said Lewis W. Nathan refused for some time after said respondent had signed said deed to sign it himself, and it was some two or three weeks after respondent had signed it before her said husband signed the same; and that he never signed it in the presence of any attesting witnesses, nor in the presence of N. B. Holt, the said notary public, and never made any acknowledgment of its execution by him before said Holt, or any other officer or person authorized to take acknowledgments of deeds.She further averred, "on information and belief, that the said Holt wrote out said certificate of acknowledgment, including the names of both respondent and her husband, supposing that they would make such acknowledgment before him; but respondent avers that her husband refused to make such acknowledgment before said Holt, and the latter neglected to erase the said Lewis W. Nathan's name from said certificate, after his refusal to acknowledge said deed."She prayed in said answer that it might be taken as a cross bill, and said complainants made parties thereto, and required to answer same; "that said deed, of which Exhibit B to the original bill is a copy," might be decreed to be delivered up and canceled; that said complainants might be enjoined and restrained from further asserting, or attempting to assert, any further claim to said property, and from all interference or intermeddling therewith; that said complainants might be compelled to account for the rents to her, and be required to deliver up possession to her.On the 19th day of January, 1894, said G. O. Janney and John C. Cheney filed an answer, admitting the conveyance of said property to said Emily T. Nathan, as alleged in said cross bill, but averring that no consideration was paid by said cross complainants to either of the grantors named in said deeds to her; that, if anything was paid for said property, the same was paid by the firm of Moses Bros., of whose estate these respondents were trustees, as averred in their original bill.They deny in their said answer that no consideration was paid to said Emily T. Nathan for the said deed executed by her to their predecessors in said trust.They also denied that said cross complainant executed said deed because of the importunities of her brothers, and that the only consideration for said deed was her confidence and affection for them.They averred that they had no knowledge or information of the averment in said cross bill as to the expectation of said Emily Nathan's brothers that their assets would be sufficient to pay their debts, and that said property would again come into their possession, and be restored to her; and they aver that they were advised that such expectations and intentions were immaterial to any issue in the cause.They also denied in their said answer that cross complainant's husband had never executed said deed with her.And they averred that he did execute said deed, and acknowledged the same before N. B. Holt, the notary public before whom it purports to be acknowledged; that said Holt wrote said certificate of acknowledgment upon the supposition that her husband would acknowledge it, and afterwards neglected to erase his name from said certificate.They aver that said Nathan did acknowledge the execution of said deed, and that said certificate of acknowledgment was placed upon said deed...