Farrow v. Cotney

• Decision Date: 02 July 1907
• Citation: 153 Ala. 550,45 So. 69
• Parties: FARROW v. COTNEY.
• Court: Alabama Supreme Court

45 So. 69

153 Ala. 550

FARROW v. COTNEY.

Supreme Court of Alabama

July 2, 1907

Rehearing Denied Dec. 19, 1907.

Appeal from Chancery Court, Tallapoosa County; W. W. Whiteside Chancellor.

Action by Julia E. Cotney against G. W. Farrow. Judgment for plaintiff. Defendant appeals. Reversed and rendered.

George A. Sorrell, for appellant.

Lackey & Bridges, for appellee.

McCLELLAN J.

The purpose of the bill, presented by the wife, is to have a formal deed declared a mortgage, and to cancel it because given to secure the debt of the husband. The appellant asserts that the transaction was a valid sale and an agreement to repurchase within a given time. The chancellor granted, in the main, the relief prayed.

The wife may sell her lands in payment of the debt of the husband, but she cannot, directly or indirectly, so subject them, as a security therefor, that she may not have the securing instrument canceled and held for naught. This has been so often declared as to require no more than the statement of the rule. The issue here is one of fact, whether the transaction was an unconditional sale and agreement to repurchase by a given time, or a method to secure the payment of the husband's debt. The issue can, we think, be correctly determined by the answer to the question: Was the existing debt paid, satisfied, by the conveyance of the lands to the appellant? It is axiomatic that there can be no mortgage unless there is a mortgage debt. We are of the opinion that the indebtedness existing prior to the conveyance was paid, settled, thereby; and hence the conveyance was not intended by the parties as a security for that indebtedness; and, of course, if not, the consequent agreement for a repurchase and the note given to that end did not rest upon any consideration other than that present in the agreement to repurchase. We will state, briefly, the reasons for this decision of the question of payment of the debt vel non:

The fact that a creditor of the husband is paid the debt by means of the conveyance, by the wife, of her lands, is condemned by no known rule of law. That it may be lawfully, and therefore bindingly, done, is firmly settled in this state. Nor does the fact that, prior to or at the time of the transaction resulting in the conveyance of her lands, he is a creditor of the husband, militate against the validity of the conveyance as such. In a proper case, his relation to the husband may be of evidential force in explanation of the nature of the transaction and the intention of the parties; but, in spite of it, the burden of proof, to avoidance by the wife of the effect of the instrument as a conveyance, rests...