Jemison v. Howell

• Decision Date: 30 May 1935
• Docket Number: 6 Div. 730
• Citation: 161 So. 806,230 Ala. 423
• Parties: JEMISON et al. v. HOWELL et al.
• Court: Alabama Supreme Court

161 So. 806

230 Ala. 423

JEMISON et al. v. HOWELL et al.

6 Div. 730

Supreme Court of Alabama

May 30, 1935

Appeal from Circuit Court, Marion County; Ernest Lacy, Judge.

Bill to quiet title by B.F. Howell and Luella Howell against Eugenia R. Jemison and others, and cross-bill to foreclose mortgage by the named respondent. From a decree denying relief under the cross-bill, named respondent appeals.

Affirmed in part, and in part reversed, rendered, and remanded.

Cabaniss & Johnston and K.E. Cooper, all of Birmingham, for appellant.

C.E Mitchell, of Hamilton, for appellees.

GARDNER Justice.

B.F Howell and wife executed to Jemison & Co., Inc., a mortgage upon their homestead to secure a loan of $1,000. The loan ran for a period of ten years, the principal note becoming due April 1, 1933, the mortgage and notes bearing date of April 2, 1923. There were ten interest notes, eight of which have been paid.

The general acknowledgment of the mortgagor and his wife bears date of April 7, 1923, and in the separate acknowledgment of the wife before the same notary public is the certification that she appeared before him "on the 7th day of April 1923."

On October 12, 1931, the principal note for $1,000 due April 1 1933, was duly transferred by Jemison & Co., Inc., to Eugenia R. Jemison (omitting reference to any previous transfer as here immaterial), with also a transfer of the mortgage given for its security. The consideration therefor, from the undisputed proof, was $1,000 and accrued interest paid by the transferee.

Defaulting in further payment, Howell filed the statutory bill to quiet title. All defendants, save Eugenia R. Jemison, disclaimed any interest in the property. Defendant Jemison asserted her title thereto pursuant to the above-noted transfer and purchase, and sought by cross-bill a foreclosure of the mortgage. Howell, the mortgagor, interposes the defense, first, that the mortgage was executed on Sunday, and is therefore void, and, second, that the real estate constituted his homestead, and the separate acknowledgment of the wife was likewise on Sunday, and of consequence invalidated the mortgage. The note and mortgage together with the acknowledgment each bears date of a secular day, and appear entirely regular upon their face.

The burden of proof rested upon the mortgagor. 60 Corpus Juris 1127; Fies & Sons v. Lowery, 226 Ala. 329, 147 So. 136.

It may be conceded that the preponderance of the proof is to the effect the note and mortgage were signed by the mortgagor and his wife on Sunday, and it seems to have been assumed by the mortgagor that this sufficed to establish the transaction as violative of our Sunday statute. Section 6821, Code 1923. But it has long been settled by our decisions, in harmony with the authorities generally (60 Corpus Juris 1099), that the validity of a written contract signed on Sunday is not impaired if it be not delivered on that day.

The early case of Flanagan v. Meyer, 41 Ala. 132, concerned a note signed on Sunday, and the holding was that the writing and signing of a note on Sunday is not the execution of it on that day, unless it be delivered the same day to the payee; delivery being essential to make it operative as a contract. And to like effect was Woodstock Iron Co. v. Richardson, 94 Ala. 629, 10 So. 144, quoted with approval in Cross v. Bank of Ensley, 203 Ala. 561, 84 So. 267, 269, where was the observation that: "If delivered on a subsequent day, not Sunday, it takes effect as a valid instrument from the day of delivery." See, also, Burns & Co. v. Moore, 76 Ala. 339, 52 Am.Rep. 332; Williams v. Armstrong, 130 Ala. 389, 30 So. 553; O'Neal v. Turner (Ala.Sup.) 158 So. 801.

Upon the question of delivery of the note and mortgage, the proof is entirely silent. It does appear without dispute there was no pretense of closing the transaction on that day, merely signing the note and mortgage, but that the loan was in fact closed some time subsequently on May 15, 1923, when the check was indorsed and delivered. If any presumptions are to be indulged, it would seem more in keeping with business practice that the delivery of these instruments not be made until the money was likewise ready to be paid over to the borrower. But there is no occasion for indulgence of any presumption. The burden of proof was upon the mortgagor, and in the absence of proof as to delivery there is nothing to show a contract made in violation of the statute.

But other considerations lead to a like result, even should it be conceded that there was actual execution of the contract on Sunday. Cross-complainant is shown to be a purchaser for value and before maturity of the principal note, which was secured by the mortgage, and which is impressed with the same character and quality of right that may be asserted in an action on the note. Commercial Credit Co. v. Parks, 215 Ala. 648, 112 So. 237; Fortson v. Bishop, 204 Ala. 524, 86 So. 399; Birmingham Trust Co. v. Howell, 202 Ala. 39, 79 So. 377.

The mortgagor signed this negotiable note and the mortgage purporting to be made on and bearing date of a secular day, and we find ourselves in accord with the Court of Appeals in Moseley v. Selma National Bank, 3 Ala.App. 614, 57 So. 91, 93, to the effect that under these circumstances he is estopped, as against an innocent holder, from showing that it was executed and delivered on Sunday. The court there observed: "The great weight of authorities seem to hold that one who gives to an instrument a legal date, thereby authorizing innocent parties to deal with it as such, cannot be heard to deny the legality of date in a suit against him by an innocent holder, who came into possession as a bona fide purchaser for value, without notice. It would seem that this rule, as applicable to commercial paper, is essentially just, and based on sound reason." The Moseley Case, supra, is approvingly quoted by the Mississippi court in Currie-McGraw Co. v. Friedman, 135 Miss. 701, 100 So. 273, where many authorities are cited. And this is in harmony with our statutes. Sections 9039 and 9041, Code 1923.

The first stated defense therefore fails, viewed from either aspect.

Likewise, we think there is more than one answer to the second stated defense, that the mortgage was void because of the invalidity of the wife's separate acknowledgment, essential for conveyance of the homestead. Hayes v. Southern Home Building & Loan Ass'n, 124 Ala. 663, 26 So. 527, 82 Am.St.Rep. 216.

It seems to be assumed in the first place by counsel for the mortgagor that an acknowledgment, which is but a formal admission before an officer by one who has executed an instrument that such was his act and deed (1 Corpus Juris 745), is of no effect if taken on Sunday; but we are cited to no statute to that effect. It bears no resemblance to a contract, and can in no manner be classed with the prohibitions of section 6821, nor those of section 5539, Code 1923. True, it is the generally recognized rule that, at common law,...