Cumberland Capital Corp., Inc. v. Robinette

Decision Date28 April 1976
Citation57 Ala.App. 697,331 So.2d 709
PartiesCUMBERLAND CAPITAL CORPORATION, INC. v. Dorothy M. ROBINETTE. Civ. 716.
CourtAlabama Court of Civil Appeals

Donald L. Newsom, Birmingham, for appellant.

Nina Miglionico, Harry Asman and Samuel A. Rumore, Jr., Birmingham, for appellee.

HOLMES, Judge.

This appeal is from the Circuit Court of Jefferson County. The trial court sitting without a jury found in favor of plaintiff-appellee Dorothy Robinette, and against defendant-appellant Cumberland Capital Corporation, Inc. Defendant appeals from that judgment.

The determinative issues before this court are whether the trial court erred to reversal by granting plaintiff's motion to set aside a prior final decree in the cause and granting a motion for a new trial, and whether the trial court erred by cancelling a mortgage held by defendant-appellant.

The controversy centers around certain real estate transactions between plaintiff, defendant, and plaintiff's son and his wife, Robert L. and Linda S. Robinette. Two deeds and a mortgage are involved. The following facts pertinent in this regard are revealed by the record:

The first deed with which we are concerned is dated July 12, 1971, and conveys title to certain real property on which plaintiff Dorothy Robinette's homeplace is situated. It is purportedly executed by Dorothy Robinette and conveys title to Robert L. and Linda S. Robinette and Dorothy Robinette.

Plaintiff denied signing this instrument. She testified that in July of 1971 she signed a blank paper presented to her by Robert Robinette. She further testified Robert told her only that the purpose of this transaction was to state that she was an unmarried woman.

Robert Robinette testified that the deed was duly executed. He stated that plaintiff was at that time divorced, that she was then contemplating another marriage, and that the conveyance was made so that her prospective husband could obtain no interest in her property through the marriage.

The second deed pertinent here concerns the same property discussed above, is dated September 27, 1972, and conveys title to Robert and Linda Robinette from Dorothy Robinette Wright, her then husband John Harold Wright, Robert Robinette, and Linda Robinette.

Plaintiff also denied signing this deed. Her testimony was that she signed a blank paper in September of 1972 presented to her by Robert Robinette for the purpose of stating that she was a married woman. She also testified Robert at that time requested that she furnish him with a copy of John Harold Wright's signature. She gave him a cancelled check or other instrument, not a deed, bearing the signature of John Harold Wright.

John Harold Wright denied ever having signed this deed.

Robert Robinette against asserted the regularity of the conveyance, stating that its purpose was a protect plaintiff's interest in the property in the event she obtained a contemplated divorce from Wright.

The parties stipulated that the two deeds were notarized without the grantors being in the presence of the notary. The attorney who purportedly witnessed the second deed testified the only grantor's signature which he witnessed was that of Robert Robinette, and that no other signatures were on the deed when Robert signed it.

The mortgage noted earlier is on the same property which is the subject of the above mentioned deeds. It bears the date of September 28, 1972, and is executed to defendant Cumberland Capital Corporation, Inc., from Robert and Linda Robinette.

The record reveals that defendant discussed the mortgage with Robert before title to the property was purportedly conveyed to him and Linda alone. It is also evident from the record that defendant was aware plaintiff initially had an interest in the property and lived thereon at the time of the mortgage. The mortgage monies were disbursed on October 3, 1972, and the formal mortgage application was dated October 4 of that year.

The mortgage proceeds were used by Robert Robinette mostly to secure various personal and business debts.

The trial court found that the two deeds were not properly acknowledged and witnessed, that the deeds had been procured by fraud on the part of Robert and Linda Robinette, and that defendant Cumberland Capital Corporation had notice of sufficient facts to apprise it of plaintiff's interest in the property. The trial court accordingly cancelled the deeds and mortgage, and rendered judgment in favor of Cumberland Capital Corporation against Robert and Linda Robinette in the amount of the unpaid mortgage indebtedness. Defendant Cumberland Capital appeals from the cancellation of the mortgage.

I

When this lawsuit was first begun, the parties entered into a consent judgment by which, Inter alia, defendant's mortgage was allowed to remain in force and effect as an encumbrance on the subject property. However, plaintiff's subsequent motion to set aside the judgment and for a new trial was granted, and the trial of the cause described above ensued. Defendant contends the granting of this motion by the trial court was reversible error. We disagree.

Rule 59, ARCP, provides in pertinent part as follows:

'(a) Grounds. A new trial may be granted to all or any of the parties . . . and (2) on all or part of the issues in an action tried without a jury, for any of the reasons for which rehearings have theretofore been granted in suits in equity in the courts of Alabama. On a motion for a new trial in an action tried without a jury, the court may open the judgment of one has been entered, taken additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.

'(b) Time for Motion. A motion for a new trial shall be served not later than 30 days after the entry of the judgment.

'(e) Motion to Alter, Amend or Vacate a Judgment. A motion to alter, amend, or vacate the judgment shall be served not later than 30 days after entry of the judgment.'

Plaintiff's motion was timely filed within thirty days after entry of the consent judgment.

Rehearings in equity previously were granted based upon the sound discretion of the court. Ex parte Upchurch, 215 Ala. 610, 112 So. 202. Here, the trial court's order setting aside the consent judgment recited that the court had heard statements and arguments of counsel. Plaintiff's motion alleged that the prior consent judgment was contrary to law and equity and that plaintiff had been uninformed as to the terms of the judgment. As such, and bearing in mind the trial court's findings in its final order, we cannot perceive how the trial court's discretion was abused in the instant case.

The cases cited by defendant for the proposition that consent judgments can only be set aside for fraud, accident and the like, are inapposite here. Initially, we note that defendant's cases do not refer solely to consent judgments, but to all judgments. Furthermore, they do not concern motions filed within thirty days after judgment as does the instant case, but rather deal with those judgment vacation proceedings formerly commenced by a bill in the nature of a bill of review and now begun by a motion under Rule 60(b), ARCP.

The trial judge accordingly did not err by granting plaintiff's motion.

II

Defendant also contends the trial court erred to reversal by its final order cancelling defendant's mortgage. Defendant argues that it is a bona fide purchaser without notice of the true state of plaintiff's title, and that the validity of its mortgage is thus unaffected by any wrongdoing.

We initially note that the deeds purporting to convey the property to Robert and Linda Robinette were, by the parties' stipulation, improperly acknowledged. Furthermore, the evidence indicates that one deed was improperly witnessed, although these defects are not apparent from the face of the instruments. We express no opinion on the manner on which the defects affected defendant's mortgage as such is not necessary to this appeal.

As noted earlier, the trial court found that the deeds were procured by fraud. Clearly, the evidence previously set out is sufficient to support this finding.

In view of this finding by the trial court, it is apparent from the record that the signatures of the grantors Dorothy Robinette and John Harold Wright were placed upon the deeds either...

To continue reading

Request your trial
13 cases
  • Touchstone v. Peterson
    • United States
    • Alabama Supreme Court
    • December 2, 1983
    ...continued possession is notice of all the equitable and other rights of the possessor. See also, Cumberland Capital Corporation, Inc. v. Robinette, 57 Ala.App. 697, 331 So.2d 709 (1976); Hill v. Taylor, 285 Ala. 612, 235 So.2d 647 (1970). However, to put a purchaser upon inquiry and to oper......
  • Fortis Benefits Ins. Co. v. Pinkley
    • United States
    • Alabama Supreme Court
    • July 29, 2005
    ...ignorance of their true character.'" Sheffield v. Andrews, 679 So.2d 1052, 1054 (Ala.1996) (quoting Cumberland Capital Corp. v. Robinette, 57 Ala. App. 697, 702, 331 So.2d 709, 713 (1976)) (emphasis added). It is well settled that "`[a] signature procured by [fraud in the factum] is conside......
  • Jett v. Lawyers Title Ins. Corp., 2050989.
    • United States
    • Alabama Court of Civil Appeals
    • February 16, 2007
    ...that was purportedly conveyed by a void deed might maintain a secured interest in the property. See Cumberland Capital Corp. v. Robinette, 57 Ala.App. 697, 331 So.2d 709 (Civ.1976) (in addition to concluding that the mortgage based on a fraudulently obtained deed was void because the deed w......
  • Upson v. Goodland State Bank & Trust Co.
    • United States
    • Colorado Supreme Court
    • January 13, 1992
    ...obtained through forgery because] the grantor ... cannot be said to have executed the instrument." Cumberland Capital Corp. Inc. v. Robinette, 57 Ala.App. 697, 331 So.2d 709, 714 (1976). The logical result of these cases, which we find persuasive, is that if a deed procured through fraud is......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT