Clark v. Lineville Nat. Bank

• Decision Date: 16 April 1936
• Docket Number: 7 Div. 365
• Citation: 167 So. 550,232 Ala. 175
• Parties: CLARK v. LINEVILLE NAT. BANK et al.
• Court: Alabama Supreme Court

167 So. 550

232 Ala. 175

CLARK v. LINEVILLE NAT. BANK et al.

7 Div. 365

Supreme Court of Alabama

April 16, 1936

Appeal from Circuit Court, Clay County; W.W. Wallace, Judge.

Suit in equity by Annice Clark against the Lineville National Bank and others. From a decree limiting relief to one-half interest in the property involved, complainant appeals.

Reversed and rendered.

Walter S. Smith and Walter S. Smith, Jr., both of Birmingham, for appellant.

Pruet &amp Glass, of Ashland, for appellees.

THOMAS Justice.

The bill was for cancellation of a mortgage or for redemption, as the case may require.

The rules that obtain and applicable to such a case are expressed in the statute, section 8272, Code of 1923, and our decisions. Ex parte Ina K. Lacy, 168 So. 554, Continental Life Ins. Co. of St. Louis, Mo., v. Brandt, 228 Ala 570, 154 So. 903; Dewberry et al. v. Bank of Standing Rock et al., 227 Ala. 484, 150 So. 463; Sims v Hester et al., 228 Ala. 321, 153 So. 281; Staples et al. v. Barret et al., 214 Ala. 680, 108 So. 742, 46 A.L.R. 1084; Trotter Bros. v. Downs, 200 Ala. 158, 75 So. 906; Staples v. City Bank & Trust Co., 194 Ala. 687, 70 So. 115; Garland v. First Nat. Bank of Scottsboro et al., 228 Ala. 480, 153 So. 743; Van Derslice v. Merchants' Bank, 213 Ala. 237, 104 So. 663; Smith v. D. Rothschild & Co., 212 Ala. 276, 102 So. 206; Alabama Farm Bureau Credit Corporation v. Helms, 227 Ala. 636, 151 So. 589; Lamkin v. Lovell, 176 Ala. 334, 58 So. 258; Spencer v. Leland et al., 178 Ala. 282, 59 So. 593; Trost v. Beck, 211 Ala. 323, 100 So. 472.

It is declared that, where a bill is filed by a wife to enforce the equitable right of redemption, an averment of prior tender is not necessary to the equity of such a bill, provided she offers to pay all that might be found due, and to do equity in the premises, as declared by the court. Dewberry et al. v. Bank of Standing Rock et al., 227 Ala. 484, 150 So. 463; Murphree v. Summerlin, 114 Ala. 54, 21 So. 470.

It is further decided that where, on the pleadings and proof, the right for accounting as to the main relief prayed is shown, the court will adjust the rights of the respective parties and grant relief accordingly, where such rights grow out of, and are inseparably connected with, the subject-matter to which relief may be and is granted. Dewberry et al. v. Bank of Standing Rock et al., 227 Ala. 484, 150 So. 463; Zadek et al. v. Burnett et al., 176 Ala. 80, 57 So. 447.

And, where the decree is for cancellation of a mortgage and an auctioneer's deed, affecting the land, the court will order the register to enter upon the margin of the records in the probate office its cancellation (Sims v. Hester et al., 228 Ala. 321, 153 So. 281) and tax the costs of the appeal and of the suit as is deemed just.

The evidence shows that the complainant wife was not primarily liable for any part of the debt sought to be secured by the mortgage, and that the giving of that mortgage was to secure the debt of the husband; she being "a mere volunteer." Hanchey v. Powell, 171 Ala. 597, 55 So. 97; Richardson v. Stephens, 122 Ala. 301, 25 So. 39; Alabama Chemical Co. v. Hall, 212 Ala. 8, 101 So. 456. Though not presented here, but as illustrative of our application of the statute, it is declared that the fact that such debt was renewed and signed by the wife did not affect the wife's nonliability for the husband's debt. Continental Bank of Memphis v. Clarke, 117 Ala. 292, 22 So. 988.

In Continental Life Ins. Co. of St. Louis, Mo., v. Brandt, 228 Ala. 570, 573, 154 So. 903, 904, the observation contained in Rollings v. Gunter, 211 Ala. 671, 101 So. 446, follows: " 'The idea of making the deed to husband and wife jointly was sprung on the moment, suggested by legal counsel, and caught up by the husband. The wife did not become the actor. Human experience is that a nonresisting wife, accustomed to follow the lead of her husband in business matters, was not likely, in the presence then confronting her, to do other than acquiesce and sign what she was expected to sign. It does not appear she had or was expected to have any means to pay the debt or any part of it. For all that appears, the husband was expected to carry out his original promise to get the money and pay the debt.' Tennessee-Hermitage Nat. Bank v. Hagan, 218 Ala. 390, 395, 119 So. 4, on suretyship."

The evidence is undisputed that the debt sought to be secured was the debt of the husband, (1) for a horse purchased by the husband, on which he executed a mortgage to John O. Denson; (2) for a judgment rendered in favor of J.N. Mitchell for the sums of $135 and $8, respectively; (3) for fertilizers; and (4) for fertilizers furnished and sold to the husband per agreement with S.J. Gay.

The evidence is further undisputed that the complainant wife bought the 20-acre tract of land covered by the mortgage to S.J. Gay from James A. Bell on November 14, 1908, paying the consideration of $900 therefor; that the husband furnished no part of that consideration, though the deed named the wife and husband as grantees; that the husband (J.T. Clark) had before or at the time the mortgage in question was executed conveyed to the wife all his right, title, interest, and estate; that at that time the mortgagee Gay knew that the wife had in her hand the deed so executed, and...