Federal Land Bank of New Orleans v. Curington, 4 Div. 896

• Decision Date: 17 December 1936
• Docket Number: 4 Div. 896
• Citation: 171 So. 361,233 Ala. 263
• Parties: FEDERAL LAND BANK OF NEW ORLEANS v. CURINGTON.
• Court: Alabama Supreme Court

171 So. 361

233 Ala. 263

FEDERAL LAND BANK OF NEW ORLEANS v. CURINGTON.

4 Div. 896

Supreme Court of Alabama

December 17, 1936

Appeal from Circuit Court, Dale County; J.S. Williams, Judge.

Suit in equity by MaryJane Curington against the Federal Land Bank of New Orleans and another. From a decree for complainant, the named respondent appeals.

Reversed and rendered.

Huey &amp Huey, of Enterprise, for appellant.

Chas O. Stokes, of Ozark, for appellee.

FOSTER Justice.

This is a bill in equity filed by appellee, and seeks to cancel a deed executed by her to her husband dated February 22, 1920 to the extent that it conveys 78 acres of the land described in it, virtually a reformation of that deed.

It is claimed that her husband had deeded to her 160 acres of land, and that he misrepresented to her the contents of the deed of February 22, 1920, in that he said it only reconveyed to him the 160 acres he had deeded to her, whereas it also included her 78 acres.

Her husband applied for and obtained a loan from appellant, and executed a mortgage dated May 16, 1921, for $5,000, and included the 78 acres and other land. She signed the mortgage, but claims she did not know that it embraced her 78 acres. Her husband was made a defendant, and died before the trial and before the evidence was taken.

Complainant testified, and her testimony is all there is that supports her claim of fraud. It relates to a transaction between her and her husband.

While it does not appear that the suit was revived as to him, no point is made by appellant on account of that failure.

The real controversy is between complainant and appellant as mortgagee of the land and purchaser of it under foreclosure sale. But it has long been held that the spirit of section 7721, Code, prohibits the testimony of the living party to a transaction with the deceased against the party to whom his interest is opposed, when the deceased person's estate or that of his grantee or heir, is interested in the result of the suit. The rule applies to protect those claiming in succession to the deceased the same as the estate of the deceased, when the other conditions exist. Key v. Jones, 52 Ala. 238, 247; Boykin v. Smith, 65 Ala. 294; Dunn v. Martin, 230 Ala. 684, 163 So. 323; Loring v. Grummon, 176 Ala. 240, 57 So. 819; Moore v. Walker, 124 Ala. 199, 26 So. 984; Smith v. Cook, 220 Ala. 338 (15), 124 So. 898; Jernigan v. Gibbs, 206 Ala. 93, 89 So....