Harris v. Kyle

• Decision Date: 10 April 1919
• Docket Number: 7 Div. 987
• Citation: 81 So. 826,203 Ala. 36
• Parties: HARRIS v. KYLE.
• Court: Alabama Supreme Court

81 So. 826

203 Ala. 36

HARRIS v. KYLE.

7 Div. 987

Supreme Court of Alabama

April 10, 1919

Appeal from Circuit Court, Etowah County; O.A. Steele, Judge.

Bill by R.B. Kyle against R.A. Harris. Decree for complainant, and respondent appeals. Reversed and rendered.

Hood &amp Murphree, of Gadsden, for appellant.

Culli &amp Martin, of Gadsden, for appellee.

MAYFIELD J.

The bill in this case is on its face a very simple affair, one to foreclose a mortgage. Only the parties to the mortgage are made parties to the bill. The answer, cross-bill, exhibits thereto, and the proof which is in effect an agreed statement of facts, on which the hearing was had and decree based, make a very complicated affair. In fact, the case thus made is an anomalous one, as for which we can find no exact precedents to guide or aid us in this decision.

It is made to appear beyond dispute that the property mortgaged belonged to the wife of appellant, who was the daughter of appellee, and that she devised it to her husband, but in trust and on condition that it should not be sold, exchanged or in any manner disposed of until her infant daughter attained her majority or married, neither of which has yet happened. The estate of the husband was also conditioned upon his surviving his daughter's attaining majority or marriage. If he died before the happening of either event the will provided that the half interest in the net income of the property which the husband was to receive was in that event to go to a third party, Miss Hanna Crook, for her private use and that of the daughter. A part of the trust was that the lands should be kept together; put in the hands of a real estate agent, who should rent it and care for it, paying one half of the net proceeds or rents to the husband and the other half to Miss Hanna Crook for the support and education of the daughter of testatrix. Miss Hanna Crook is clearly made the testamentary guardian of the daughter, both as to her person and estate. Whether or not this provision of the will--as to the guardianship of the person of the daughter--has been carried out, and, if not, why not, is not made to appear, as neither the testamentary guardian nor the ward are made parties to the suit.

It is made to appear, however, that as to the estate the provision of the will has not been carried out, but that the income which the will provided should be paid to Miss Crook, the testamentary guardian, has been paid to another who appears to have been appointed guardian of the estate of the ward. Whether or not this was properly or legally done we will not now attempt to decide, because the parties interested were not before the trial court, and are not before us. We merely call attention to the fact to show the anomaly of the case.

The appellee, the complainant below, and the mortgagee of the mortgage sought to be foreclosed, is made executor of the will in question, and qualified as such, and acted as such executor for several years, making final settlement as such in the probate court; and it seems that the rents have been paid over to him since the date of his final settlement.

While the mortgage here in question is on its face on an undivided half interest in the property described, and it appears that the mortgagor has an interest in the land, which may result in an undivided half interest therein, yet it also appears that this interest may be cut down to a half interest only in the net profits during his life. In other words, as we have shown, the husband's interest and title is not an absolute or unconditional title, except as to the half interest in the net profits during his life or the minority or single state of his daughter. We are unwilling to apply the rule of estoppel in this case that a mortgagor is estopped to deny his own title, or set up the defense contrary to the recitals of his mortgage, that the property is held by him as trust property, which he had no right to mortgage, as held in Jones on Mortgages, §§ 682 and 1482, and in our own ...