Griffin v. Dawsey

• Decision Date: 18 May 1916
• Docket Number: 3 Div. 196
• Parties: GRIFFIN v. DAWSEY.
• Court: Alabama Supreme Court

72 So. 32

196 Ala. 218

GRIFFIN v. DAWSEY.

3 Div. 196

Supreme Court of Alabama

May 18, 1916

Appeal from Chancery Court, Butler County; W.R. Chapman, Chancellor.

Bill by Mary A. Griffin against S.C. Dawsey. Decree for defendant dismissing the bill, and complainant appeals. Affirmed.

Powell & Hamilton, of Greenville, for appellant.

Frontis H. Moore, of Montgomery, for appellee.

MAYFIELD J.

This is a bill by a married woman to cancel a mortgage as a cloud on her title, on the ground that it was given to secure the debt of her husband, in violation of section 4497 of the Code. The only material disputed question is whether the debt secured was that of the husband and not that of the wife. The note and the mortgage on their face recite the debt secured to be that of both the husband and the wife. In the absence of parol proof on the subject, the writings make the debt a joint and several obligation of both. The oral testimony of the complainant and her witnesses tends to show that the debt secured was the debt of her husband, and that she signed the instruments and mortgaged her property only to secure the debt of her husband, and in violation of section 4497 of the Code. The evidence of respondent and his witnesses tends to show that the debt was primarily that of the wife, and that the husband was surety only. The chancellor found in favor of the respondent and dismissed the bill, and from the decree the complainant appeals. We confess that the record leaves the disputed question in doubt, and that much can be said arguendo in favor of each contention.

It is insisted by appellant that, as all the dealings and transactions leading up to the loan and the execution of the mortgage were had between the respondent and the husband, and as the latter and the wife had applied for a permanent and a temporary loan, this shows that the loan was made to him, and not to complainant. This fact is undisputed, and unexplained of course tends strongly to show that the loan was to the husband, and not the wife. It is shown without dispute however, that when respondent agreed to make the loan to the husband, he was under the belief that the husband owned the land mortgaged, and that he agreed to make the loan only in case the abstract showed a good title. An attorney was employed, probably by both the husband and the respondent, to make the abstract. The abstract showed no title in the husband, but showed title in the wife, and showed, moreover that this title was incumbered by two prior mortgages which on their face showed that they were executed to secure the joint and several debts of both the husband and the wife. The attorney advised both the husband and the respondent of the condition of the title, and that the loan could not be made thereon to the husband, but could be made to the wife. The attorney testified that he advised the wife to the same effect, and that she...