Forlines v. Paulk

• Decision Date: 17 December 1942
• Docket Number: 4 Div. 249.
• Parties: FORLINES v. PAULK et al.
• Court: Alabama Supreme Court

10 So.2d 864

243 Ala. 516

FORLINES v. PAULK et al.

4 Div. 249.

Supreme Court of Alabama

December 17, 1942

J. C. Fleming, of Elba, for appellant.

Carmichael Crenshaw & Simmons, of Opp, for appellees.

THOMAS Justice.

The appeal is from a decree denying relief to the complainant.

A pertinent part of that decree was, "Complainant admits that she signed the mortgage and note at her home, no one else being present except the Justice of the Peace who took her acknowledgment; that the Justice told her it was a mortgage on her store; that prior to that her husband had talked to her about mortgaging the store so he could get credit, and that she and her husband had a tentative agreement to deed the property to Paulk and move to Opp, but this fell through. The proof without dispute shows that Paulk (mortgagee) was not present when the mortgage was executed his attorney going to Kinston to get the papers executed, and bringing them back to him. No contention is made that Paulk had any information as to complainant not being fully informed as to what she was doing. There is no proof whatever as to fraud on the part of the husband or of Paulk, and no duress, nor is the bill framed on such theories, the sole contention being that the mortgage is void as securing her husband's debt."

The court further found: "There is no contention but what complainant was authorized by law to mortgage her property if credit was given to her, if the debt was hers and not her husband's alone. If she had not executed the mortgage Paulk would not have extended any further credit. In my opinion, the case of Marbury Lumber Company v Woolfolk, 186 Ala. 254-257, 65 So. 43, is directly in point in this case."

The decree, under the cross-bill, was for a reference to ascertain the balance due on the mortgage debt with legal interest to date of the filing of the register's report. Interest will be computed at the lawful interest provided by our statutes which obtain. Code 1940, T. 9, §§ 60, 61. Acts 1927, p. 440, Acts 1935, p. 69.

The mortgage in question of date of May 6, 1931, contained, among other things, the following recitals: "It is agreed by mortgagor that H. B. Paulk is to grant mortgagor a line of credit not to exceed five hundred dollars, and that this mortgage and note is to secure said amount or any part thereof, and that goods, wares and merchandise are to be advanced from time to time to mortgagor, and that should the account exceed $500 then this mortgage is to secure any excess. Mortgagor appoints D. E. Forlines her attorney in fact to make all purchases and she confirms and ratifies all his acts in the premises, including all purchases made above said line of credit.

"Now in order to secure the prompt payment of said note when due, together with any additional amounts furnished me by the mortgagee on any account and at any time before the debt herein is fully paid, in money or otherwise, I, S. Forelines and husband D. E. Forlines do hereby grant, sell and convey to the said H. B. Paulk all my household and kitchen furniture, all crops of every description raised or caused to be raised by me or under my direction during the years 1931, 1932, and 1933, in Coffee County, Alabama, * * *.

"The north half of lot no. 2, in Kinston, Alabama. * * *." [Italics supplied.]

The mortgage contained the further provisions: "* * * Also one collateral note for $200 executed by Sester Proctor and J. H. Proctor to D. E. Forlines which said collateral note has been transferred to me. This instrument is a first mortgage on said property. It is understood that mortgagee may cancel or withdraw said line of credit at any time, without any liability for such acts, said property being situated in Coffee County, Alabama. * * *

"* * * this conveyance is a mortgage, and if said note and other indebtedness secured by it be paid when due, then this mortgage shall become null and void.

"But if the said indebtedness, or any installment thereof is not paid at maturity, then the entire debt secured hereby shall become due and payable; and in such case, the mortgagee or assignee is authorized to seize the personal property herein conveyed and to sell the same either at public or private sale, and with or without notice, as may be determined upon; and the said mortgagee or assignee is authorized in such case to sell at public auction sale the real estate conveyed herein after posting notice thereof in three public places in the city or town of Elba, Alabama, for a period of fifteen days, * * *.

"At any sale made under this mortgage, the mortgagee may become the purchaser thereof. * * *

"The property in this mortgage and the mortgage itself, shall stand as security for any valid obligation of mine which the mortgagee may acquire by purchase or otherwise from any person owning the same; and likewise, this property conveyed and the mortgage itself, shall stand as security for any valid debt due by me to any person to whom this mortgage may be assigned. * * *."

The due date of the mortgage is not specifically stated other than that it was to be effective for the years 1931 to 1933, inclusive.

The question for decision is whether or not there should be annulment of the mortgage of complainant on the theory the debt sought to be secured was that of the husband and the wife was thereby to become surety for his debts in violation of the Code 1940, T. 34, § 74, Code 1923, § 8272.

Upon consideration of the cause for final decree upon pleading and proof on testimony given ore tenus the trial court denied the relief prayed and ordered a reference on the cross-bill to...