Fies & Sons v. Lowery

• Decision Date: 16 March 1933
• Docket Number: 6 Div. 254.
• Citation: 147 So. 136,226 Ala. 329
• Parties: FIES & SONS v. LOWERY.
• Court: Alabama Supreme Court

147 So. 136

226 Ala. 329

FIES & SONS v. LOWERY.

6 Div. 254.

Supreme Court of Alabama

March 16, 1933

Appeal from Circuit Court, Blount County; O. A. Steele, Judge.

Bill to cancel mortgages as clouds upon title by Bertha Lowery against Fies & Sons, a partnership, composed of R. and M Fies, and cross-bill by respondents. From a decree for complainant, respondents appeal.

Reversed rendered, and remanded.

Edw. T Rice, of Birmingham, and J. T. Johnson, of Oneonta, for appellants.

P. A Nash, of Oneonta, for appellee.

KNIGHT Justice.

Bill filed by Mrs. Bertha Lowery against Fies & Sons to enjoin foreclosure of a mortgage, and to cancel, as clouds upon her title, the said mortgage, and another mortgage, both executed to said Fies & Sons by complainant's husband, Street Lowery. These mortgages, on their face, purport to have been executed also by the complainant; and they also purport to convey to said Fies & Sons, along with other lands, two designated lots in the town of Oneonta, Ala., which at the time constituted the homestead of the mortgagors.

It is averred in the bill that, at the time of the execution of the mortgages, the complainant and her husband actually resided upon the property, and it constituted their homestead. One of the mortgages was executed on the 25th day of January, 1922, while the other was executed under date of September 1, 1926, and acknowledged, if acknowledged at all, on the 22d day of October, 1926. This latter mortgage also conveyed the some identical two lots which were conveyed by the first mortgage.

The complainant avers that she acquired title to said property by a conveyance executed to her by her husband on the 20th day of November, 1931.

With reference to the execution of the mortgage dated September 1, 1926, the complainant makes the following consecutive averments: "The complainant further avers that the said mortgage purports to have been separately acknowledged by her before Lessie Lowery, a notary public, but that her separate acknowledgment was never taken by the said Lessie Lowery to said conveyance, and that the property herein above described is the homestead of said complainant and was the homestead of the said Street Lowery and complainant at the time of the alleged execution of the same and that the said mortgage is void on the ground and for the reason that the said mortgage was not executed or signed by her and her separate acknowledgment taken as provided by law. Or the complainant avers in the alternative that in the event the said Lessie Lowery took her said acknowledgment it was fraudulently obtained in that the complainant did not know that her homestead was included in said mortgage. And that she never knew that there was such a mortgage or mortgages purporting to have been signed by her on her said homestead to the said Fies and Sons until since her said husband abandoned her. The complainant further avers that she has not at any time executed or signed with her said husband a mortgage upon her said homestead to said Fies and Sons and that the said mortgage hereinabove specifically described or any other mortgage that may be held by the said Fies and Sons is a cloud on her title to said property and that the said mortgage or mortgages are void."

Demurrers were filed by respondents to the bill, but no decree on the demurrer appears in the record; and no error is assigned upon the record with respect to any ruling upon the demurrer.

The respondents Fies & Sons filed an answer to the bill. In their answer, Fies & Sons admitted claiming the two mortgages above mentioned on said lots, and denied the averment that said mortgages were not executed by the complainant, and averred that the complainant did execute the said mortgages, and that she duly acknowledged the same before a notary public, as shown on said mortgages. They denied that said mortgages were void, and they further denied that they perpetrated any fraud on complainant in obtaining her signature to said mortgages, or to either of them.

The respondents further aver in their answer that, at the time the said mortgages were given, the said Street Lowery, the husband of complainant, was the owner of the property, and they aver that each of said mortgages was given to secure the indebtedness therein recited, due and owing from the said Street Lowery to the complainants. The respondents Fies & Sons prayed that their answer be taken and considered as a cross-bill exhibited against the complainant, and further prayed that the court decree that said two mortgages, which are made exhibits to the cross-bill, "are valid liens on said lots 103 and 104 in block 9, of the original survey to the town of Oneonta, as platted and filed in the Probate Office of said county; that said mortgage be foreclosed, that this court will make and enter a decree authorizing cross-complainant to foreclose said mortgage according to the terms of said mortgages, or will direct the register of this court to advertise and sell the same, whichever may seem most equitable and just to the court. They further pray that the court ascertain the amount of the indebtedness, including the interest and a reasonable attorney's fee, due on each of said mortgages; and authorize the foreclosure of said mortgages as hereinabove prayed for the said amount ascertained to be due on each of said mortgages," etc.

The complainant in the original bill filed answer to the cross-bill, in which she denied that the said Street Lowery was in fact the owner of the property described in the original bill, but admitted that the legal title was in the said Street Lowery at the time the mortgages were executed. She averred that "the property was paid for with money or funds of the cross-respondent, and in equity and good conscience the said property was that of said cross-respondent on the 22nd day of February, 1922." Cross-respondent then proceeds to reassert the invalidity of said mortgages for the reason stated in her original bill.

On final hearing, on pleadings and proof, the court decreed that said mortgages were null and void, and constituted clouds on the title of complainant in so far as they undertake to convey and embrace the property described in the original bill of complaint, to-wit: "Lots 103 and 104 in Block Nine (9) in the original survey of the town of Oneonta, Blount County, Alabama." The court further denied relief to cross-complainant under their cross-bill.

From this decree, the present appeal is prosecuted.

The testimony, other than that which was documentary, was taken by depositions before the register. The testimony not having been taken orally, in open court, no presumptions are indulged as to the findings of fact on which the decree is based. Andrews v. Grey, 199 Ala. 152, 74 So. 62; Blair et al. v. Jones et al., 201 Ala. 293, 78 So. 69; Code, § 10276, subsec. 1.

The testimony is conclusive to the point that each of the two mortgages were actually signed by the complainant. The evidence is also without conflict that, if any fraud or imposition was practiced upon the complainant, in the signing of the mortgages, or if she was, in any way, misled as to the property conveyed by the same, Fies & Sons had no hand in it, and the evidence wholly fails to give the slightest hint of any wrongdoing on the part of these mortgagees. The evidence further shows, without the slightest doubt, that the mortgages were given to secure a bona fide indebtedness due, and to become due, from the said Street Lowery to the said Fies & Sons. It also appears, without dispute, that the two lots in question constituted the homestead of the mortgagor Street Lowery at the time of the execution of the mortgages, and that the complainant and her husband were then living together as man and wife. There is no averment in the bill as to the value of the homestead, nor is there any evidence in the record as to its value. And we are also of the opinion, from the evidence, that the legal and equitable title to the homestead, in so far as the complainant is concerned, was in the husband at the time the mortgages were executed to Fies & Sons, and that, if the complainant has any right to file the present bill, it grows out of the conveyance to her by her husband after the execution of the mortgages.

It is the settled rule of our decisions that, although a married man, owning a homestead, cannot make a valid alienation thereof without the voluntary signature and assent "of the wife," yet she has no title therein, legal or equitable, during the life of the husband, and she cannot, ordinarily, maintain a bill to avoid the conveyance of the homestead, on the ground that it was executed without her voluntary signature and assent, when she does not allege that the husband "fails to act." Seaman v. Nolen, 68 Ala. 463; Miller v. Marx, 55 Ala. 322; Bender v. Meyer, 55 Ala. 576; Jones v. De Graffenreid, 60 Ala. 145; Weiner v. Sterling, 61 Ala. 98; Thompson on Homestead, §§ 695, 696; Vancleave v. Wilson, 73 Ala. 387; Grider v. American Freehold L. & M. Co., 99 Ala. 283, 12 So. 775, 42 Am. St. Rep. 58.

So, then, in this case, the complainant's authority to file this bill, under the evidence in the cause, is referable solely to the title she acquired by the conveyance from her husband, executed subsequently to the mortgages. We make this observation, at this time, for hereafter, in the further consideration of the case, we will have occasion to allude to this principle.

It has been uniformly held in this jurisdiction that the act of taking and certifying an acknowledgment of the grantor to a deed or mortgage, or other conveyance, is the exercise of a judicial function, and, when the certifying officer acquires jurisdiction by having the grantor and the instrument to be...