Gibson v. Wallace

• Decision Date: 10 April 1906
• Citation: 147 Ala. 322,41 So. 960
• Parties: GIBSON v. WALLACE.
• Court: Alabama Supreme Court

41 So. 960

147 Ala. 322

GIBSON v. WALLACE.

Supreme Court of Alabama

April 10, 1906

Rehearing Denied June 30, 1906.

Appeal from Chancery Court, Lawrence County; W. H. Simpson Chancellor.

"To be officially reported."

Bill by W. K. Wallace against E. R. Gibson. From a judgment for plaintiff, defendant appeals. Affirmed.

W. T Lowe and Kirk, Carmichael & Rather, for appellant.

D. C Almon, for appellee.

WEAKLEY C.J.

The bill was filed by W. K. Wallace against E. R. Gibson, a married woman, to foreclose a mortgage executed by her with the consent and concurrence of her husband upon her property. The mortgage recites that she was indebted to the mortgagee in a certain sum, evidenced by a described instrument of even date, and this instrument, which is exhibited with the bill is the note of both husband and wife, her signature being first written.

The defenses are two in number: First, that she executed the mortgage under the duress of the husband, of which the mortgagee had knowledge; and second, that she had signed the note and mortgage as surety of the husband merely. The chancellor, on the evidence, was of opinion she had failed to establish either defense, and decreed foreclosure for the amount of the note, less a small credit, and attorney's fees. While there is evidence of general mistreatment of the wife by the husband, we are not reasonably satisfied that she executed the mortgage under his coercion or duress; and if she did, there is want of sufficient evidence that the mortgagee either participated in or was cognizant of it. Walker v. Nicrosi, 135 Ala. 353, 33 So. 161; Mohr v. Griffin, 137 Ala. 456, 34 So. 378. The burden of proof rests upon the wife to show that the debt was that of the husband merely and that she executed the instruments (the note and mortgage) as his surety. Mohr v. Griffin, 137 Ala. 456, 34 So. 378; Lunsford v. Harrison, 131 Ala. 263, 31 So. 24. The note and mortgage, prima facie, constitute an indebtedness of her own, although parol evidence is admissible to establish her suretyship if it in reality existed. Many cases of the same general nature as this have been presented to and decided by this court. The law is settled beyond further controversy and the result usually turns upon the facts. No two cases are exactly alike, and hence, other decisions on different facts and circumstances, are of little assistance, in reaching a correct conclusion in new cases as they arise. The question at last is whether, notwithstanding the form of the transaction, the wife was attempting to secure a debt entirely her husband's, upon which she was not bound either separately or jointly. We have given the evidence careful examination. It lies within a small compass, and it has not been difficult to secure the full consideration thereof by each of the judges who participate in this decision.

The consideration of the note, secured by the mortgage of January 18, 1896, now sought to be foreclosed, was the surrender and cancellation of two other notes, and mortgages of an earlier date, in like manner duly executed by the wife to the same mortgagee, her husband joining therein, as required by the statute, to constitute a valid conveyance. Attention must therefore, be directed to the two previous transactions. At the outset, an important fact, established by the undisputed evidence, and in the light of which the transactions, and the testimony of the two parties must be interpreted should be noted. The wife owned the farm, agricultural implements, and live stock; the husband owned nothing, and this fact was known to Wallace. In 1904 a stock of plantation supplies was purchased by the husband from the proceeds of cotton grown on the wife's land, and with this he conducted, in her name, a small store. She gave no personal attention to her business affairs, their management was confided solely to the husband. According to her...