Lansden v. Bone

• Decision Date: 19 June 1890
• Citation: 90 Ala. 446,8 So. 65
• Parties: LANSDEN ET AL. v. BONE ET AL.
• Court: Alabama Supreme Court

8 So. 65

90 Ala. 446

LANSDEN ET AL. v. BONE ET AL.

Supreme Court of Alabama

June 19, 1890

Appeal from chancery court, Madison county; THOMAS COBBS Chancellor.

Bill in equity filed by John F. Lansden and others against Hugh P Bone and others. A demurrer to the bill was sustained, and complainants appeal. For report of former appeal, see 6 South. Rep. 611.

Humes, Walker & Sheffey, for appellants.

Ward & Betts, for appellees.

MCCLELLAN J.

Since the former appeal in this case, (85 Ala. 562, 6 South. Rep. 611,) the bill has been amended, and now presents the following state of facts: Mattie W. Lansden, wife of Abner D. Lansden and mother of the complainants, owned and possessed the lands in controversy as her statutory separate estate. In the year 1870 the said Abner and his wife executed to Hugh P. Bone a conveyance of the lands, which was absolute in form, but which was intended to operate only as a mortgage to secure a debt from the said Abner to the said Bone. This conveyance contained the usual warranties of title, etc. Said Mattie W. died in January, 1877, intestate, owing no debts, and no administration was ever had upon her estate. Soon thereafter Bone took possession of the lands, and continued in possession until 1883, when he abandoned them, and the complainants, who are the only heirs at law of Mattie W. Lansden, deceased, thereupon took possession and filed this bill. The prayer of the bill, as amended, is to have the deed from Abner D. Lansden and wife to Bone declared a mortgage, and, as such, to confine its operation and effect to the life-estate of said Abner as tenant by curtesy in said lands, and to have the same canceled, annulled, and held void as to the reversion therein after the falling in of the life-estate, which said reversion vested in the complainants as the heirs at law of Mattie W. Lansden. To the amended bill it was demurred that "said bill, as amended, shows that said Abner D. Lansden became entitled to the use of said land during his life; that said conveyance to respondent of date November 1, 1870, if a mortgage, is a valid mortgage of said interest of said Abner D. in said lands; and complainants neither claim to be the owners of said Abner D.'s equity of redemption, nor allege payment of the mortgage debt, nor offer to pay what may be due respondent on it." This demurrer was sustained, and from the chancellor's decree in that behalf the present appeal is prosecuted.

Confining our consideration to the averments of the bill, we are forced to the conclusion that the deed from Lansden and wife to Bone was intended solely to secure a debt of the husband, and is therefore, in equity, to be treated as nothing more or less than a mortgage. Being a mortgage of the wife's land to secure the husband's debt, and the land belonging to the wife's statutory estate, it was, of course, absolutely void as against the wife and her heirs, and wholly inefficacious to charge any interest she or they had or have in the subject-matter. Heard v. Hicks, 82 Ala. 484 1 South. Rep. 639, and cases cited. That the wife, whether in or out of possession, may exhibit her bill in the chancery court to have such a mortgage canceled as a cloud on her title is well settled. Armstrong v. Connor, 86 Ala. 350, 5 South. Rep. 451; Snyder v. Glover, 75 Ala. 379; Harden v. Darwin, 77 Ala. 472. The wife dying with the legal...