Dennis v. Atlanta Nat. Building & Loan Ass'n
| Decision Date | 11 April 1905 |
| Docket Number | 1,348. |
| Citation | 136 F. 539 |
| Parties | DENNIS v. ATLANTA NAT. BUILDING & LOAN ASS'N et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
This case is an appeal from a decree of the Circuit Court for the Middle District of Alabama foreclosing a mortgage in favor of the Atlanta National Building & Loan Association against an undivided one-half interest in certain real estate in the city of Montgomery, Ala. The issues in the case arose under the following state of facts: In 1863 Mrs. Susan W. Gilmer was left a widow with nine children-- three sons and six daughters. In 1875 Mrs. Gilmer became the owner of a house and lot in Montgomery described as the east half of lot No 5, square No. 9, East Alabama, city of Montgomery. Mrs Gilmer lived in the house continuously from the time of the purchase until she died, in March, 1893, and had probably lived there before she bought and before her husband's death. In 1873 Mr. Gilmer's daughter Susan married A Campbell Jones, who thereafter boarded with his mother-in-law. In 1873, when Mrs. Gilmer's husband died most of the children appear to have been minors. Mrs. Gilmer kept a boarding house in the premises in question, although in 1886 Mrs. Jones, and three other daughters who were unmarried, took the more active management and control of the boarding house. In 1882 the property in question was sold for state and county taxes. The description of the property as sold was 'a house and lot situated on the corner of Bibb and Washington streets in the said City of Montgomery. ' The property was purchased at this sale by one Martin, and he took a certificate of purchase in accordance with the laws of Alabama with reference to tax sales. During the same year Martin assigned the certificate to one Stoelker, who afterward, in the same year, assigned the certificate to A. Campbell Jones, Mrs. Gilmer's son-in-law, who, at the time he received the certificate, was living with his mother-in-law on the premises bought. Jones held this certificate in his possession until April 22, 1890, when he presented it to the probate judge, and obtained a tax deed which described the property as 'being situated at the corner of Washington and Bibb streets, the property of Susan W. Gilmer. ' This deed was duly recorded in the office of the judge of probate of Montgomery county April 22, 1890. The property was sold by the city of Montgomery on regular proceedings for unpaid taxes due the city of Montgomery, and, being described as 'the property of Susan W. Gilmer, assessed to her as the east half of lot five, square nine, in that part of the City of Montgomery, known as East Alabama,' At this last sale the property was bought by one Martin, who received a deed to the same, and he afterwards conveyed the property to one Stoelker, and Stoelker conveyed the same to A. Campbell Jones. After this, A. Campbell Jones conveyed the property to S.W. Jones (his wife), W. E. Gilmer, R. C. Gilmer, and A. E. Pentecost, all daughters of Susan W. Gilmer, and all of whom before, at the time of the transaction, and afterwards, lived in the house on the premises so conveyed. The last-mentioned deed was executed on the 17th day of June, 1890, and, according to the agreed statement of facts, recorded in the office of the judge of probate of Montgomery county on the 10th of July, 1890. In June, 1890, S.W. Jones, E. E. Gilmer, R. C. Gilmer, and A. E. Pentecost executed and delivered to the Atlanta National Building & Loan Association a mortgage on the property in question for $5,000. Charles Wilkinson, an attorney at law, was the representative of the Atlanta National Building & Loan Association. He negotiated the loan, examined the title, and appears to have acted for it generally as its agent and attorney in arranging and completing the transaction.
In 1892 Susan W. Gilmer filed her bill in the chancery court of Montgomery county against A. Campbell Jones and the four daughters named, but not against the building and loan association, seeking to set aside the tax sales and other conveyances by which her four daughters claimed title to the property in controversy; and such proceedings were had that a decree was rendered setting aside the tax titles and conveyances, so far as the four daughters and A. Campbell Jones were concerned, and ordering a sale of the property, but a reimbursement to Jones and the four daughters of all money paid out for or on account of the property, and a division of the balance of the proceeds among the heirs of Susan W. Gilmer, she having died during the progress of the chancery suit. At the sale made under this decree the appellant, Dennis, became the purchaser, and has been in possession of the same since the said sale, which occurred in 1897. The decision of the Supreme Court of Alabama on appeal in this chancery suit is reported. Waller, Adm'r, v. Jones et al., 107 Ala. 331, 18 So. 277.
The bill now before the court was filed against the J. M. Dennis, Rebecca C. Gilmer, Eleanor E. Gilmer, Susan W. Jones, and A. E. Pentecost. The real issue in the case as made by the answers is between Dennis and the building and loan association. The case was submitted to the Circuit Court (Hon. David D. Shelby, Circuit Judge) who on the 21st of January, 1904 (128 F. 293), rendered a decree foreclosing the mortgage against an undivided one-half interest in the property. The reason for foreclosing the mortgage on only an undivided half is shown by the following extract from the opinion of the Circuit Judge: 'It is urged in defense of this suit by the solicitors of the only defendant who contests the foreclosure that the mortgage cannot be foreclosed, so far as the interest of Mrs. S.W. Jones and Mrs. A. E. Pentecost is concerned, because they were married women at the time of the execution of the mortgage, and that their husbands did not join in the mortgage as required by the Alabama statute. In reply the solicitor for the complainant, in his brief, says:
John M. Chilton, Edgar H. Farrar, B. F. Jonas, and E. B. Kruttschnitt, for appellant.
Thos. H. Watts, for appellees.
Before PARDEE, Circuit Judge, and NEWMAN and MEEK, District Judges.
NEWMAN District Judge (after stating the facts).
We are unable to agree with the conclusion reached by the learned judge who decided this case in the Circuit Court. In the view we have taken of this case, the question raised as to the sufficiency of the description of the property in the tax deed recorded and relied upon here is unimportant. In January, 1892, a bill was brought by Mrs. Susan W. Gilmer and her children not named as defendants against A. Campbell Jones, Susan W. Jones (his wife), Eleanor E. Gilmer, and Annie E. Pentecost, in the chancery court of Montgomery county, Ala. Mrs. Gilmer died pending the suit, and it was prosecuted to a conclusion by her administrator and the other complainants. The suit resulted in an adjudication by the Supreme Court of Alabama (Waller, Adm'r, et al. v Jones et al., 107 Ala. 331, 18 So. 277) that the title of Mrs. Gilmer to the property in this case had never been divested by the tax sales in question, and that she was entitled to a decree adjudging the property to be hers, subject to the amount expended by Jones and the other defendants for taxes and certain improvements. It being thus determined by the state court that as between her and her son-in-law, Jones, and the daughters to whom Jones conveyed the property in 1882, Mrs. Gilmer had the title to the property, subject to certain charges, the real question we have to determine is whether or not the complainant here, the building and...
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