Hall v. Gordon

• Citation: 66 So. 493,189 Ala. 301
• Decision Date: 07 November 1914
• Docket Number: 119
• Parties: HALL v. GORDON.
• Court: Supreme Court of Alabama

66 So. 493

189 Ala. 301

HALL v. GORDON.

No. 119

Supreme Court of Alabama

November 7, 1914

Appeal from Circuit Court, Lowndes County; A.E. Gamble, Judge.

Ejectment by Mrs. Mary R. Gordon against Mrs. Birdie Sheppard Hall. Decree for complainant, and defendant appeals. Reversed and remanded.

J.R Bell, of Hayneville, and H.S. Houghton and W.P. McGaugh, both of Montgomery, for appellant.

George E. Gordon and Hill, Hill, Whiting & Stern, all of Montgomery for appellee.

McCLELLAN J.

Statutory ejectment, instituted by appellee against appellant to recover premises in the town of Hayneville. If the mortgage executed by Mary R. Gordon and George E. Gordon to W.P McGaugh was not invalid, because violative of the statute (Code, § 4497), which provides that "the wife shall not directly or indirectly, become the surety for the husband," then the title of the appellant, arising from or consequent upon the foreclosure of that mortgage, should have prevailed in this cause. The burden of proof to avoid a mortgage of the wife's property, because given to secure the payment of the husband's debt, is upon the assailant of the instrument. Interstate Bank v. Wesley, 178 Ala. 186, 59 So. 621; Elkins v. Bank of Henry, 180 Ala. 18, 60 So. 96.

In Hollingsworth v. Hill, 116 Ala. 184, 185, 22 So. 460, 461, it was said:

"The payment by the wife of a debt of the husband with money belonging to her separate estate is not the making of a contract by the wife within section 2349 of the Code of 1886 (section 4497 of the Code of 1907); but it is a disposition of personal effects of the wife, within section 2348 (section 4494 of the present Code). The wife and the husband jointly may apply her money to the payment of a debt, by parol or otherwise, and it is of no consequence that the debt is that of the husband."

See First Nat. Bank v. Moragne, 128 Ala. 157, 161, 30 So. 628; Sample v. Guyer, 143 Ala. 613, 42 So. 106.

She may create by note, secured by mortgage of her property, her own primary obligation to pay another a sum of money, and then devote the sum so received by her to the payment of a debt of her husband; or, she may utter such promise to pay, and so secure it, and thereby and therewith pay and discharge or buy her husband's debt, substituting her own primary responsibility for that the husband's creditor held, but surrendered in consequence of his (creditor's) satisfaction, against the husband. Giddens v. Powell, 108 Ala. 621, 19 So. 21; Mohr v. Griffin, 137 Ala. 456, 34 So. 378, and other authorities therein cited; Farrow v. Cotney, 153 Ala. 550, 45 So. 69.

George E. Gordon was superintendent of education for Lowndes county. As such officer he had contracted with teachers serving public schools in that county for sums in excess of that available, for the school year, to compensate the teachers engaged. This made it necessary, as he believed it, and as he was advised, for him to have funds with which to meet the excess of funds stipulated in the contracts with the teachers. As appears, his obligation was to the teachers, and that was to pay them the amounts stipulated in their contracts. The sum needed for this purpose was approximately $800. Mrs. Gordon, fully advised, we may assume, of her husband's stated financial necessities, and who owned in her own right the land in question, executed on July 20 1909, to W.P. McGaugh, along with her husband, George E. Gordon, a promissory note for $750, and secured its payment, upon its maturity on November 1, 1909, with a mortgage on the property described in the complaint. The husband joined in the execution thereof. In the instrument it was provided that any excess sum left from foreclosure, after satisfying the obligation thereby secured, should be paid to Mary R. Gordon. The mortgage was subordinate to a like instrument given to the Fourth National Bank of Montgomery; and Willis Brewer, "for value received," subordinated his superior mortgage to that thus made to W.P. McGaugh. Neither George E. Gordon nor Mary R. Gordon were, on July 20, 1909, when these instruments were executed to McGaugh, indebted to McGaugh in any sum. McGaugh did not then have the money to make, nor did he then make, a loan on the note and mortgage. Nor was either of them then indebted to the Bank of Hayneville. On the 13th day of August, 1909, some 24 days after the execution and delivery of the note and mortgage to McGaugh, McGaugh assigned and transferred and delivered to the Bank of Hayneville the note and mortgage of ...