Gafford v. Speaker

• Decision Date: 12 April 1900
• Citation: 125 Ala. 498,27 So. 1003
• Parties: GAFFORD ET AL. v. SPEAKER.
• Court: Alabama Supreme Court

27 So. 1003

125 Ala. 498

GAFFORD ET AL. v. SPEAKER.

Supreme Court of Alabama

April 12, 1900

Appeal from chancery court, Jefferson county; John C. Carmichael Chancellor.

Bill in equity by Bertha Speaker against M. B. Gafford and others for the purpose of having a certain mortgage and deed canceled as a cloud on her title. From a decree granting the relief asked, defendants appeal. Reversed.

The bill in this case was filed by Bertha Speaker, a married woman, on June 28, 1898, for the purpose of having a certain mortgage and deed canceled, as a cloud upon her title to lands specifically described in the complaint. It is averred in the bill that the complainant was the owner of the real estate in controversy, as her separate estate; having purchased the same from one S. A. Dupuy in 1886. It was further averred in the bill that on May 27, 1896, the complainant, as surety for her husband, Anton Speaker, joined him in the execution of a note for $2,310 to one E. B Keeling, and that, to secure the payment of said note, she executed, together with her husband, as his surety, a mortgage to said E. B. Keeling upon the said real estate in controversy, which was her separate estate; that said Keeling foreclosed the mortgage under the power of sale contained therein, and that at the sale one Kalford Kreth purchased the property, and that after such purchase the said Kreth sold and transferred the property to Minnie B. Gafford, the wife of F. H. Gafford; that, after the purchase by Minnie B Gafford of said lands, she demanded of the complainant a surrender of the possession thereof. It was then alleged that the mortgage to Keeling was a cloud upon her title, and that at the time of the filing of the bill she was in possession of the property in controversy. The prayer of the bill was that the mortgage executed by E. B. Keeling be canceled, as a cloud upon the title of complainant, and that whatever right, title, or claim may be held by Minnie B. Gafford or Frank H. Gafford or Kalford Kreth by virtue of such mortgage be declared null and of no effect as against the complainant. Minnie B. Gafford, Frank H. Gafford, Kalford Kreth, E. B. Keeling, and Anton Speaker were made parties to the bill. The answer of M. B. and F. H. Gafford denies that the debt to said E. B. Keeling was the debt of Anton Speaker,and alleges that it was the debt of complainant, and denies that she acted or executed said note and mortgage to E. B. Keeling as security for her said husband, and alleges that, after the purchase of the property by Kreth, the complainant and her husband attorned to said Kreth by a written contract, and by paying rents to him until Gafford purchased the property. F. H. Gafford denies that he has any interest in the property. M. B. Gafford alleges specifically in her special plea, as an amendment to her answer, that she is the owner of the property described in the bill, having purchased the same from Kalford Kreth on the 18th day of June, 1898, received a warranty deed, and paid in cash $1,800 for the same, and alleges that she did not know of any claim of complainant. M. B. Gafford also, in her special plea, sets up specifically that she is a purchaser for value, and without notice, of this property, having paid $1,800 in cash for the same, taking a warranty deed from said Kreth, and had no notice of any equity or claim of appellee thereto, and knew of no fact calculated to put her on inquiry as to any equity of appellee. The sufficiency of this plea was not questioned. Kalford Kreth answered, denying all the material allegations in the bill, and, for a second defense, alleged affirmatively that on the 20th day of June, 1891, appellee applied to him for a loan of $2,000 upon the security of a mortgage upon the lands described in the bill, for the purpose of paying off a mortgage on the same property to one Thomas, of $2,000, which he granted to her upon appellee executing a mortgage on the same property, her husband joining in the note and mortgage; that he (Kreth) sold said mortgage and note to E. B. Keeling; and that, upon said Keeling refusing to allow a further extension of the time in the payment of said note, complainant renewed the said note and mortgage to E. B. Keeling, a copy of which is attached to the bill of complaint, and thereupon Kreth entered satisfaction of his mortgage on the records, and that was the sole consideration for said note and mortgage to said E. B. Keeling. Kreth further sets up by special plea the tenancy of complainant, and her occupancy of the premises as his tenant from the 1st of April, 1897, until the 30th day of June, 1898, as an estoppel to deny his title as such landlord; and for a further defense, by special plea, Kreth denies that at the time of making the loan to appellee he had any notice that appellee had executed the note and mortgage to him as security for her husband; and also a want of notice of the same at the time he purchased at the mortgage sale by Emma T. Keeling as transferee of E. B. Keeling, and alleges that appellee is estopped to say that she was security for her husband. The sufficiency of these two pleas was not questioned, and issue was joined on them. The evidence as adduced upon the hearing is sufficiently stated in the opinion. Upon the final submission of the cause upon the pleadings and proof, the chancellor rendered a decree declaring that the complainant was entitled to the relief prayed for, and ordered accordingly. From this decree the defendant appeals, and assigns the rendition thereof as error.

John H. Miller, Samuel Wilder, and Alex. T. Loudon, for appellant.

Denson & Tanner, for appellee.

TYSON J.

The bill in this cause was filed for the purpose of having certain conveyances canceled, as a cloud upon the title of complainant to the land described in the bill. Her right to do so depends in a large measure upon whether she has established by the evidence that the debt secured by certain mortgages executed by her and her husband upon the land was her debt, or the debt of her husband. The bill alleges that on the 27th day of May, 1896, she joined her husband, as his security, in the execution of a note and mortgage for $2,310 upon the land to one Keeling; that on the 25th day of March 1897, Keeling sold the land, under the power of sale contained in this mortgage, to Kreth, who sold the land to the Gaffords. It cannot be doubted that, if the mortgage to Keeling was given wholly as security for a debt of the complainant's husband, it is void, as contravening the express inhibition of the statute (Code, 2529). Richardson v. Stephens (Ala.) 25 So. 39; Price v. Cooper (Ala.) 26 So. 238. And the burden of proving this affirmative issue as tendered by the allegation of the bill is upon the complainant. Has she done so? There is no dispute but that the land attempted to be conveyed by the mortgage was her property. It is also without dispute that this was all the property she owned, and that her husband was insolvent and owned no property. It was further without dispute that the mortgage to Keeling was given to satisfy and discharge a former mortgage executed by the complainant and her husband to Kreth on the 20th day of June, 1891, and which had been transferred by Kreth to him for a valuable consideration paid. The loan made by...