Hewitt v. First Nat. Bank
| Decision Date | 27 January 1938 |
| Docket Number | 6 Div. 161 |
| Parties | HEWITT et al. v. FIRST NAT. BANK OF BIRMINGHAM. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Cullman County; W.W. Callahan, Judge.
Creditor's bill by the First National Bank of Birmingham against Winnie Griffith Hewitt, Pearl Griffith Waldrop, Myrtle Griffith Charlie O. Griffith, J.J. Griffith, and others. From a decree overruling a demurrer to the bill, the named respondents appeal.
Affirmed.
J.T Johnson, of Oneonta, for appellants.
St John & St. John, of Cullman, for appellee.
Briefly stated, the bill, in so far as it affects this appeal, alleges: That complainant, appellee, made a series of loans to W.C. Griffith and A.P. Warren, partners, who executed notes for them, each separately, with Winnie Griffith Hewitt, Pearl Griffith Waldrop, Myrtle Griffith, and Charlie O. Griffith as indorsers. They will sometimes herein be referred to as indorsers. The notes were dated, respectively, in January, February, March, and April, 1930, and renewed in October, 1930. The indorsers, owners of an interest in certain realty, executed a mortgage to respondent W.C. Griffith on March 7, 1928, who was their brother.
The mortgage was alleged to be without consideration and voluntary, and was transferred by W.C. Griffith to the Tennessee Valley Bank to secure a debt past due and of long standing. It does not seem distinctly to allege the date of the transfer to the bank, but the inferences, against the complainant on demurrer, and from the allegations of the bill, are that the mortgage was transferred on the day of its date. It alleges that it was agreed between W.C. Griffith and the bank that the mortgage was to be withheld from the record from its date until December 31, 1930, when it was filed for record in Cullman county, and January 3, 1931, when filed for record in Blount county: that in the meantime complainant made the loans as stated, and with the indorsements, without notice of the mortgages; that the execution of the mortgage and agreement to withhold it from record constituted a fraud; that at the time the bank received said transfer, it had notice that the mortgage was without consideration; that the mortgage embraced substantially all of the property of said indorsers; and that they are insolvent.
It also alleges that since the mortgage became due it has been transferred to Reconstruction Finance Corporation as collateral security; that it had notice of the matters therein charged. There were many amendments.
The last amendment brings in another aspect not theretofore mentioned in the bill as amended. It is that on February 15, 1935, the indorsers executed a deed to J.J. Griffith, their cousin, conveying the Blount county land, reciting a consideration of $100, and other valuable consideration, but that it was in fact without consideration; that it was recorded on March 18, 1935, the day before complainant sued the indorsers at law in the circuit court of Cullman county; that they knew that complainant was about to sue and conspired with J.J. Griffith to have the deed executed and recorded in anticipation of said suit.
To the bill as last amended the Reconstruction Finance Corporation answered and demurred, but its demurrer has not been acted on, and it is not a party to this appeal.
The Tennessee Valley Bank has not answered or demurred to the bill as last amended, nor has its liquidating agent, who is also a party, and they are not parties to this appeal. But demurrers were filed by the indorsers and J.J. Griffith, which were overruled, and they have appealed and assigned errors.
We will respond to the contentions in the order in which they are argued in brief. The first is that the facts on which the fraud is alleged are not set forth, but that the fraud is only a conclusion of the pleader. But facts are alleged, and the...
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