Cook v. Kelly

• Decision Date: 10 May 1917
• Docket Number: 1 Div. 970
• Citation: 75 So. 953,200 Ala. 133
• Parties: COOK v. KELLY et al.
• Court: Alabama Supreme Court

75 So. 953

200 Ala. 133

COOK v. KELLY et al.

1 Div. 970

Supreme Court of Alabama

May 10, 1917

Rehearing Denied June 14, 1917

Appeal from Law and Equity Court, Monroe County; W.G. McCorvey Judge.

Bill by George W. Cook against Riley Kelly and another to quiet title to land.Decree for respondents, and complainant appeals.Affirmed.

The bill alleges that orator is the owner of certain land therein described; that he purchased it and paid on the same the sum of $200, and was placed in possession of the land, and immediately erected valuable improvements on the land amounting to about $1,500, and that he and his wife have continued to reside on the land since as their homestead, and have paid the balance of $400 due on said land; that there is no suit pending, etc., and that the value of the land and improvements will not exceed $2,000.It is then alleged that they became indebted to Riley Kelly in the sum of $624, and that Kelly was anxious to secure same by a mortgage on the homestead above described, and that orator went to his wife to get her to sign the same, but she refused, and, on informing Kelly of her refusal, Kelly asked if he had a deed to the land, and, on being told that his son had not made any deed, Kelly procured John A. Cook, his son, orator's vendor, to make him a mortgage on the land in the above sum and then to execute to orator a deed to the same land whereupon orator agreed, and the mortgage and deed were executed.This is averred to be an evasion of the requirements of the homestead law as to the separate acknowledgment of the wife; that John A. Cook was not indebted to Riley Kelly in any manner, and said Kelly is now threatening to foreclose his mortgage and put orator off his homestead, etc.The mortgage and deed are set out as exhibits.Riley Kelly answered, and made his answer a cross-bill, setting up his equities, in that he furnished the money, or a greater part of it in making the improvements and paying the purchase price of the land, and that at the time this was done Cook promised and agreed to execute him a mortgage as soon as he could obtain title to the land.

C.J Torrey, of Mobile, and C.L. Hybart, of Monroeville, for appellant.

J.D. Ratcliffe and Hare & Jones, all of Monroeville, for appellees.

THOMAS J.

It is well established in this state that a party paying off prior liens or mortgages on real estate is entitled by subrogation to the rights of the prior lienholders in a proper case.It is further settled that one who advances money for the discharge of a prior lien, though he be without previous interest in the subject of the lien, is...