Dillard v. Propst

• Decision Date: 15 January 1925
• Docket Number: 6 Div. 158
• Citation: Dillard v. Propst, 212 Ala. 664, 103 So. 863 (Ala. 1925)
• Parties: DILLARD et al. v. PROPST et al.
• Court: Alabama Supreme Court

103 So. 863

212 Ala. 664

DILLARD et al. v. PROPST et al.

6 Div. 158

Supreme Court of Alabama

January 15, 1925

Rehearing Denied April 30, 1925

Appeal from Circuit Court, Fayette County; Ernest Lacy, Judge.

Bill in equity by D.F. Propst and others against Dora Dillard and others, and cross-bill by respondents. From a decree for complainants, respondents appeal. Affirmed.

W.S McNeil and S.T. Wright, both of Fayette, for appellants.

W.L Harris, of Fayette, for appellees.

MILLER J.

This is a bill in equity, as amended, by D.F. Propst and members of the late firm of Propst Bros., to foreclose a mortgage given by defendants W.C. Dillard and his wife, L.E. Dillard, on certain real estate described therein, to secure a note for $800, given by them to Propst Bros., dated May 1, 1909, and payable October 15, 1909. The complainants aver that D.F Propst is the owner of the note and mortgage by transfer or assignment prior to the commencement of this suit.

W.C. Dillard and wife, L.E. Dillard, the mortgagors, both died after the suit was commenced, and the cause was revived in the name of the representative of their only child, a son, who died after his parents, and his widow and children were also made parties defendant. These defendants answered the amended bill, and made their answer in the nature of a cross-bill. They aver the debt, if any, secured by the mortgage, was the debt of the husband, W.C. Dillard; and not the debt of the wife, L.E. Dillard; that she was surety for the husband, and the note and mortgage were void as to her; that John O. Perry and L.M.C. Perry conveyed said land described in the mortgage to W.C. Dillard and L.E. Dillard by deed dated February 11, 1897, which was duly filed and recorded in the probate office of the county in which the land was situated, on April 11, 1912; that L.E. Dillard was ignorant of the fact that the deed was made jointly to her and her husband to this land until after this suit was commenced; that the purchase money paid for this land belonged to her, having been inherited from the estate of her father; and that she was in possession of this land, claiming it as her own, since the purchase from the Perrys until her death, and since her death her heirs have been in possession of it, and the mortgage of complainant is void and a cloud on the title to the land. They aver the mortgage was given by W.C. Dillard to secure future advances, and no advances were obtained, and they aver the mortgage debt was paid before this suit was commenced. They seek by the cross-bill to have the mortgage declared void, and removed as a cloud upon their title to the land, and to declare cross-complainants have a resulting trust in the interest in the land conveyed to W.C. Dillard by the deed.

The complainants D.F. Propst and others, by answer, deny many of the averments of the cross-bill, and aver in their answer as follows:

"That Propst Bros. were bona fide purchasers for value without any notice of any alleged equity upon the part of respondent L.E. Dillard, and without any notice of any secret understanding or arrangement between her and her husband, W.C. Dillard; that they had no notice that L.E. Dillard claimed to be in possession and the owner of the lands described in Exhibit A of the answer and cross-bill."

The court, on pleading and proof, held and decreed that W.C. Dillard and L.E. Dillard each owned an undivided one-half interest in this land when the mortgage was executed, that L.E. Dillard was not indebted or liable to the complainant or Propst Bros. on the note and mortgage--it was and is the debt of her husband, W.C. Dillard, that complainant has a lien on the undivided one-half interest in the lands of W.C. Dillard by virtue of the mortgage, and is entitled to have it sold to satisfy the debt secured by it, and a reasonable solicitor's fee for prosecuting this suit to collect the debt which is secured by the note and mortgage; and ordered a reference to be held by the register to ascertain the amount of the principal and interest now due on the mortgage, and also what would be a reasonable attorney's fee to be paid complainant D.F. Propst for the services of his solicitor in the prosecution of this suit to collect this debt; and directed that the register report his findings to this court. This appeal is prosecuted by the defendants, cross-complainants, from that decree, and it is the error assigned.

Under the statute approved September 28, 1923 (Gen.Acts 1923, p. 631), this court on appeal in an equity case--

"shall consider only the testimony which is relevant, material and competent, and that it shall not be required or necessary for either the trial court or the Supreme Court to point out or indicate what testimony, if any, should be excluded or not considered." Gen.Acts 1923, p. 631.

This deed of John O. Perry and L.M.C. Perry, a copy of which is attached to and made a part of the cross-bill and answer, shows that the grantees are W.C. Dillard and L.E. Dillard; that they paid the grantors $900 for the land. This deed conveys this land to the grantees jointly without expressing the interest of each, and the law raises the presumption, without proof, that they are equally interested, each taking an undivided one-half interest. Long v. McDougald, 23 Ala. 413; Walthall v. Goree, 36 Ala. 728; Whitlow v. Echols, 78 Ala. 206; McWhorter v. Cox, 209 Ala. 233, 96 So. 71. This conveyance was executed on February 11, 1897, and it was filed and recorded in the probate office of the county in which the land is located on April 11, 1912. The grantees named therein were husband and wife at that time; they moved on the property after receiving the conveyance, and each continued to use and occupy it as a homestead from 1897 until their respective deaths, which occurred after the filing of this bill of complaint. This mortgage was duly executed and delivered by them on this land to Propst Bros. on May 1, 1909, and it was duly filed and recorded in the proper probate office on May 1, 1909, and it was afterwards--after its maturity--transferred to complainant D.F. Propst.

This mortgage and note were given by W.C. Dillard, husband, and L.E. Dillard, his wife; it was his and not her debt. Neither the wife, personally, nor her one-half interest in the property, was liable for the debt of the husband. The wife...