Corinth Bank & Trust Co. v. King

• Decision Date: 10 June 1913
• Court: Alabama Supreme Court
• Parties: CORINTH BANK & TRUST CO. et al. v. KING.

62 So. 704

182 Ala. 403

CORINTH BANK & TRUST CO. et al. v. KING.

Supreme Court of Alabama

June 10, 1913

Appeal from Chancery Court, Colbert County; W.H. Simpson Chancellor.

Bill by Lida C. King against the Corinth Bank & Trust Company and another. From a decree for complainant, defendants appeal. Affirmed.

Kirk Carmichael & Rather, of Tuscumbia, for appellants.

W.P Chitwood, of Moulton, and James H. Branch, of Tuscumbia, for appellee.

DE GRAFFENRIED, J.

Lida C King filed this bill for the purpose of having canceled as clouds upon her title two mortgages which she executed upon certain of her lands. One of these mortgages was made to the Corinth Bank & Trust Company and the other to the Tishomingo Savings Institution. Mrs. Lida C. King when she executed the mortgages was and is now a resident of Colbert county, Ala and the lands mortgaged by her are situated in said county, and they are now and were when she filed this bill in her possession. Complainant is a married woman, the wife of Bruce King, and she claims that the mortgages were executed to secure, not her debts, but debts of her said husband. In other words, that when she signed the notes evidencing the debts, and when she executed the mortgages to secure them, she did so, not as the principal debtor, but only as the surety of her husband.

1. The evidence in this case clearly shows that, while the notes and mortgages were signed and acknowledged in Alabama, the entire transaction took place in the state of Mississippi. The debts were also, by the terms of the notes, payable in Mississippi.

At common law a married woman was without legal capacity to contract or to bind her legal estate in lands by mortgaging the same.

We have, in evidence in this case, no statute of the state of Mississippi, and the presumption, in the absence of evidence to the contrary, is that in Mississippi the common law prevails.

That state belongs to that class of states which are known as the common-law states of the Union.

The complainant, and all the parties to this cause, treated these contracts as Alabama contracts, however, and we will so treat them.

2. The sole question, therefore, for us to determine is whether the complainant, when she signed the notes and mortgages, did so as the surety of her husband, or whether she did so as the principal debtor.

Complainant alleges that the contracts were contracts of suretyship, plain and simple, and upon that allegation she places her right to relief. The burden is upon the complainant to establish this essential allegation of her bill.

3. The note to the Tishomingo Savings Institution was signed by three people, viz., Bruce King, the husband, Lida C. King, the wife, and Robert King, the father of Bruce King, and in the order named. It is admitted that Robert King was a mere surety on this note, and, if Bruce King was in fact the principal debtor and Lida C. King and Robert King were his sureties merely, then the signatures on the notes appear in the order in which we would naturally expect them to appear.

The note of the Corinth Bank & Trust Company is signed by Bruce King and Lida C. King, and their names appear upon the note in the order named. If complainant was a mere surety on the note, then her name appears on the note in the place where we would expect it to appear.

4. When the notes and...