Jones v. First Nat. Bank

• Decision Date: 13 October 1938
• Docket Number: 7 Div. 471.
• Citation: 236 Ala. 606,184 So. 168
• Parties: JONES ET AL. v. FIRST NAT. BANK OF ASHLAND.
• Court: Alabama Supreme Court

184 So. 168

236 Ala. 606

JONES ET AL. v. FIRST NAT. BANK OF ASHLAND.

7 Div. 471.

Supreme Court of Alabama

October 13, 1938

Rehearing Denied Nov. 10, 1938.

Appeal from Circuit Court, Clay County; W. W. Wallace, Judge.

Suit in equity by the First National Bank of Ashland against W. L Jones and U. V. Jones, to reform a mortgage and foreclosure deed, in which there was a cross-bill by respondent to cancel mortgage and deed and for accounting. From a decree for complainant, respondents appeal.

Affirmed.

Walter S. Smith and Walter S. Smith, Jr., both of Birmingham, for appellants.

E. J Garrison, of Ashland, for appellee.

FOSTER Justice.

The purpose of this suit in equity is to reform a mortgage and its foreclosure deed to the mortgagee as the purchaser at the sale so as to correct an erroneous feature of the description set out in them both, relating to the government numbers.

The answer denies the execution of the mortgage, and, therefore, that there was any mistake in the description, but admits the execution of the notes to secure borrowed money, with M. F. Jones as surety. It alleges that he paid the debt and the notes were surrendered to him by the bank, the payee.

A further defense set up is that the land was the homestead of the mortgagors, and that the purported acknowledgment was before an officer and stockholder of the bank, and that the mortgage was on that account null and void.

The answer was made a cross-bill and prayed for a cancellation of the mortgage and foreclosure deed, and for an accounting for rents and profits and a surrender of possession of the land to cross-complainant. By an amendment, they deny that they appeared before the notary public, or that they made any acknowledgment before him.

The answer to the cross-bill denied the payment of that debt by M. F. Jones, and that the notes were turned over to him as evidence of any such settlement, but that he settled certain litigation as to other transactions and included in the settlement was the liability of M. F. Jones as surety, and the notes were turned over to him for that reason and at the same time began to foreclose the mortgage; that complainant went into possession of the land after the foreclosure on May 7, 1928, and has had possession ever since; that the mortgage was given for money borrowed then and there to pay the purchase price of the land. The answer denies that the notary public was a stockholder or had any financial interest that would disqualify him.

On the issues thus made there was a hearing and the witnesses testified in open court before the presiding judge, and their testimony was reported by the court reporter and certified by him, showing the name of each witness examined, by whom offered, all the questions and answers on direct and cross-examination, and the documents offered as exhibits.

The note of testimony shows that both parties submitted the cause for decree on final hearing on certain named pleadings and exhibits "and upon the following testimony, to-wit: as taken down by the court reporter, including testimony of W. L. Jones, U. V. Jones and Garfield Coleman, and all exhibits to the testimony so taken, including four notes, deed and mortgage, cancelled check and notation thereon and receipt offered in evidence by respondents." The witnesses thus named were the two respondents and another they introduced. The names of none of complainant's witnesses are so recited.

Appellant argues here that therefore their testimony is not proper for consideration on this appeal, nor was it so properly considered in the circuit court under rule 75, Chancery Practice. That is the chief argument of counsel made on this submission.

If the testimony of complainant's witnesses is to be considered it was sufficient to create a conflict in the evidence of such sort as that the decision of the trial judge upon the issues made on the evidence heard by him in open court, should not be...