Elkins v. Bank of Henry

• Decision Date: 12 November 1912
• Citation: 60 So. 96,180 Ala. 18
• Parties: ELKINS v. BANK OF HENRY.
• Court: Alabama Supreme Court

60 So. 96

180 Ala. 18

ELKINS v. BANK OF HENRY.

Supreme Court of Alabama

November 12, 1912

Appeal from Chancery Court, Henry County; L. D. Gardner, Chancellor.

Bill by Sarah A. Elkins against the Bank of Henry. From a decree for defendant, complainant appeals. Reversed and rendered.

P. A McDaniel, of Abbeville, for appellant.

Espy &amp Farmer, of Dothan, for appellee.

DE GRAFFENRIED, J.

Sarah A. Elkins filed this bill in the chancery court of Henry county against the Bank of Henry, a corporation, for the purpose of having canceled, as a cloud upon the title to certain of her lands, a certain mortgage which she, with her husband, D. M. Elkins, executed and delivered to said bank on the 12th day of March, 1908. The mortgage was duly executed by the wife, with her husband, on said day, to secure a note for $1,535.96, which matured on October 1, 1908, and in which it is recited that the wife made the note as principal, and that the husband signed the same as her surety. The bill alleges that the mortgage was executed by the wife, not to secure the payment of her own debt, but to secure a debt of the husband, and that, therefore, the mortgage was void under the provisions of section 4497 of the Code of 1907, which declares that "the wife shall not, directly or indirectly, become the surety for the husband." The burden of proof was upon the wife to establish the invalidity of the mortgage. Interstate Bank v. Wesley, 59 So 621.

The facts are that D. M. Elkins, the husband, was, at the time of the execution of the mortgage in question, indebted to the Bank of Henry in the sum of over $4,000. A part of this indebtedness, viz., $1,033.99, was evidenced by a note of said D. M. Elkins, which matured on January 1, 1908, and which was secured by a mortgage on certain personal property. No part of this indebtedness had been paid when the mortgage in question was executed and delivered, and whether the Bank of Henry had ever called upon D. M. Elkins for its payment or the payment of any part of it the evidence does not disclose.

In order that the contention of the appellee as to the manner in which the indebtedness of the appellant was created and the mortgage in question executed may be apprehended, we quote the following from the evidence of A. S. Steagall, president of said Bank of Henry: "A few days prior to said date I had two conversations with D. M. Elkins, husband of the complainant. In the first one he said that complainant wanted to borrow from the bank enough money to take up the first purchase-money note that he owed the bank on the Bradley land, which was then $1,066.03. A day or two later he came back and said that, in addition to the amount it would take to pay the Bradley note, he would need about $300 in his business, and we want to borrow that amount also, and to secure said sum she would give a mortgage on the house and lot involved in this suit. I then instructed O. M. Steagall to prepare a mortgage for said sum of money, with interest, on the land involved in this suit and have her to execute it, if she in fact wanted to borrow the money. * * * Mrs. Elkins was not...