First Nat. Bank of Gadsden v. Moragne

• Decision Date: 23 January 1901
• Citation: 128 Ala. 157,30 So. 628
• Parties: FIRST NAT. BANK OF GADSDEN v. MORAGNE. [1]
• Court: Alabama Supreme Court

30 So. 628

128 Ala. 157

FIRST NAT. BANK OF GADSDEN v. MORAGNE. ^[1]

Supreme Court of Alabama

January 23, 1901

Appeal from city court of Gadsden; John H. Disque, Judge.

Action by Eula L. Moragne against the First National Bank of Gadsden. From a judgment in favor of plaintiff, defendant appeals. Reversed.

This was an action brought by the appellee against the appellant. The facts of the case are sufficiently stated in the opinion. The cause was tried by the court without the intervention of a jury, and upon the hearing of all the evidence the court rendered judgment for the plaintiff. The defendant appeals and assigns as error the rendition of judgment in favor of the plaintiff.

Amos E Goodhue, for appellant.

Geo. D Motley, for appellee.

McCLELLAN C.J.

This is an action by Mrs. Moragne against the bank for money had and received to the use of plaintiff. The bank cashed a check drawn on it and to her order for $2,800, and put the money to the credit of J. B. Moragne, the payee's husband, who afterwards checked it out in payment of his own debts or for other purposes of his own. The check was presented at the bank by J. B. Moragne. When presented it had not been indorsed by Mrs. Moragne. The cashier called J. B Moragne's attention to this, and he thereupon professing to have authority to indorse the paper for and in the name of his wife, wrote on the back thereof, "Eula L. Moragne, per J. B. Moragne," and thereupon the check was honored by the bank, and the amount of it passed to the credit of J. B. Moragne, as we have said. Moragne now swears that he had no authority from his wife to indorse said check. Mrs. Moragne testifies that she did not know of the existence of said check until a month or so after its payment by the bank in the way we have detailed, and that she gave her husband no authority to indorse it. The trial was by the judge of the city court without a jury. He found for the plaintiff, and judgment was entered accordingly. Upon a critical examination and consideration of the evidence adduced below and set out in full in the transcript before us, we are led to a different conclusion. The money involved here was the proceeds of a loan made by Rexinger to Mrs. Moragne secured by a mortgage upon her property, duly executed by her. The purpose of this transaction on the part of Moragne and his wife was to raise money to pay off his debts and enable him to carry on his business. The testimony of J. B. Moragne on the trial shows this. Mrs. Moragne herself testifies that she gave Rexinger the mortgage, and that she knew that her husband had gotten money on it to pay his debts. The bill which she filed two years after the transaction to have the mortgage canceled, and which she swore to and which is here in evidence, shows that at the time she executed the mortgage she knew the money was to be used in the payment of J. B. Moragne's debts, and that her signature was obtained to that end, and it was upon that ground expressly and solely that she sought to have the conveyance annulled. Then, too, she knew within a short time after the execution of the mortgage that money had been gotten by her husband upon it to be used in the payment of his debts, and for five years after such knowledge came to her she in no way asserted that this money had not been thus gotten and used according to her intention in executing the mortgage and with her consent. This quiescence, long continued, may not constitute...