Markham v. Wallace

• Decision Date: 19 May 1906
• Citation: 41 So. 304,147 Ala. 243
• Parties: MARKHAM ET AL. v. WALLACE.
• Court: Alabama Supreme Court

41 So. 304

147 Ala. 243

MARKHAM ET AL. v. WALLACE.

Supreme Court of Alabama

May 19, 1906

Appeal from Chancery Court, Lawrence County; W. H. Simpson Chancellor.

"To be officially reported."

Suit by W. K. Wallace against Elizabeth M. Markham and others. From a decree for the complainant, defendants appeal. Affirmed.

Kirk Carmichael & Rather, for appellants.

W. W Callahan, for appellee.

HARALSON J.

It appears that the bill was filed on February 19, 1902, by complainant, William K. Wallace, against Elizabeth M. Markham and others, defendants, the heirs at law of J. T. Pettit deceased.

It is alleged, that on May 15, 1873, E. T. Simms was indebted to James H. McDonald in the sum of $550.00, evidenced by his promissory note of that date, payable twelve months after date, and that on May 23, 1873, the said E. T. Simms, for the purpose of securing the payment of said note, executed to said McDonald, "a written instrument or mortgage on the lands" described in the bill, which was filed for record, on the 18th of June, 1875, and was duly recorded in the probate office, on the 13th of March, 1876. Said instrument, in form a mortgage, was not attested by a witness, nor acknowledged by said Simms.

It is further shown, that on the 3d of [41 So. 305] March, 1881, said note and mortgage were unsatisfied, and that Thomas D. Simms was the owner and in possession of said note and mortgage, and on said date, said Thomas D. Simms delivered said note and mortgage, and transferred the same without recourse, to complainant, for a consideration of about $800.00.

It is further shown, that E. T. Simms was, at the time of the execution of said note and mortgage an unmarried man; and on April 4, 1876, he entered into a marriage contract with Mollie De Graffenried, whereby he settled by deed upon her, for the term of her natural life, the lands described; that said marriage contract was in writing and provided, that the conveyance to said Mollie De Graffenried, was made subject to the mortgage of $550.00 executed by said E. T. Simms to said McDonald on said lands described in section 10 of the bill; that upon the death of said Mollie, the lands were to revert to the said E. T. Simms, his heirs and assigns forever. This marriage contract and conveyance were duly acknowledged on the 20th of the same month.

It is further shown, that on the 7th of December, 1881, said E. T. Simms and his wife, Mollie, for and in consideration of $1,600.00, paid to them by William K. Wallace (the complainant), sold and conveyed to him the lands described in their deed to him, consisting of 400 acres, (or one-half of the 800 acres) of the lands described in said instrument or mortgage by said E. T. Simms to said McDonald, and in section 2 of the bill, which said lands are the subject of litigation in this suit. This deed was filed for record, on the 5th of January, 1882, and was recorded on the 7th of that month.

It is alleged, that the note and mortgage referred to in the bill, were owned by complainant, W. K. Wallace, on the 7th of December, 1881, the date of the deed from said E. T. Simms and wife to him; that said mortgage only conveyed an equitable interest in the lands to said McDonald, and the transfer to complainant did not contain any apt words of conveyance; that in order to procure said mortgage, it would have required a bill in equity, which would have entailed a great expense, annoyance and delay, and to prevent this, complainant agreed to satisfy the mortgage and pay Mrs. Mollie F. Simms, in cash, the difference between the mortgage debt, and sixteen hundred dollars, the expressed consideration of the deed,--to procure her signature thereto, and that Mrs. Simms was claiming rights in said property under said marriage contract between herself and said E. T. Simms. It was also shown, that the true value of the lands conveyed to complainant by said Simms and wife, did not exceed the amount due on the mortgage; that the satisfaction of the mortgage indebtedness was all the consideration moving between complainant and E. T. Simms, and that all that was paid by complainant to said Mrs. Simms, was paid to acquire her signature to the deed, and a release of her alleged interest in said lands by virtue of her marriage contract, and thus by such arrangement and transaction avoid the litigation that would have necessarily followed her refusal to sign said deed.

It is again averred in the bill, that on October 24, 1881, Pettit &...