Hanchey v. Powell
| Decision Date | 20 April 1911 |
| Parties | HANCHEY v. POWELL. |
| Court | Alabama Supreme Court |
Appeal from Chancery Court, Pike County; L. D. Gardner, Chancellor.
Bill by M. J. Powell against W. E. Hanchey to declare a mortgage void, because given in security of the husband's debt and to remove it as a cloud upon title. Decree for complainant, and respondent appeals. Affirmed.
Foster Samford & Carroll, for appellant.
W. E Griffin and J. H. Wilkerson, for appellee.
Section 4497 of the Code of 1907 expressly provides that "the wife shall not, directly or indirectly, become the surety for the husband." It is needless to consider the technical definitions of the word "surety," as our court has repeatedly applied this statute to facts similar to the transaction in question, and has in effect held that if the wife gives a mortgage to secure a debt contracted by the husband, and not for her as her agent, and for which she was not originally liable in law or equity, as distinguished from a mere moral obligation growing out of the fact that she or her estate had been benefited by the money lent the husband the said mortgage was invalid, and would be canceled at her instance. The test being whether or not she was originally liable in law or equity for the debt, and not whether or not she was benefited by same, if the mortgage is given to secure a debt for which the husband was alone liable, it falls within the prohibition of said section 4497. Richardson v. Stephens, 122 Ala. 301, 25 So. 39, also reported in 114 Ala. 238, 21 So. 949; Wadsworth v. Hodge, 88 Ala. 506, 7 So. 194; Hawkins Lumber Co. v. Brown, 100 Ala. 217, 14 So. 110; Horton v. Hill, 138 Ala 625, 36 So. 465; Thompson v. Hudgins, 116 Ala. 93, 22 So. 632. The testimony of the respondent shows that the lumber was sold to the husband, and while he knew the wife owned the land, and it was to be used for her benefit, he looked only to the husband for the payment of same. He did not sell it to the wife, or to the husband as her agent, but to the husband individually, who was to pay the debt with money he was going to get from Babe Powell, and the wife was not looked to or considered as complainant's debtor until after Babe Powell failed to supply the money and the mortgage was given. The wife was not originally or primarily liable for the debt, and the giving of the mortgage by her was but securing a debt of her husband, and she was a mere...
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Lester v. Jacobs
...147 Ala. 322, 41 So. 960; Sample v. Guyer, 143 Ala. 613, 42 So. 106; Mills v. Hudmon & Co., 175 Ala. 448, 57 So. 739; Hanchey v. Powell, 171 Ala. 597, 55 So. 97; Lunsford v. Harrison, 131 Ala. 263, 31 So. 24; First National Bank v. Moragne, 128 Ala. 157, 30 So. 628; Gafford v. Speaker, 125 ......
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Weatherwax v. Heflin
...before us, and the judgment does not support the 5th headnote or annotation as quoted in the original opinion. The case of Hanchey v. Powell, 171 Ala. 597, 55 So. 97, is dealt with in Becker Roofing Co. v. Hanks et 228 Ala. 685, 155 So. 360, 362, where the court said: "The letter from Mrs. ......
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Sansom v. Sturkie, 7 Div. 758.
...of the agency of the husband in her behalf. Thus the facts in this case are different from those on which the decision was rested in Hanchey v. Powell, supra. But it may be observed in passing that the admitted during the time from 1916 to 1939 and a short while before the instant bill was ......
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Clark v. Lineville Nat. Bank
... ... mortgage, and that the giving of that mortgage was to secure ... the debt of the husband; she being "a mere ... volunteer." Hanchey v. Powell, 171 Ala. 597, 55 ... So. 97; Richardson v. Stephens, 122 Ala. 301, 25 So ... 39; Alabama Chemical Co. v. Hall, 212 Ala. 8, 101 ... So ... ...