Mathews v. J.S. Carroll Mercantile Co.
| Citation | 195 Ala. 501,70 So. 143 |
| Decision Date | 04 November 1915 |
| Docket Number | 4 Div. 586 |
| Parties | MATHEWS et al. v. J.S. CARROLL MERCANTILE CO. |
| Court | Supreme Court of Alabama |
Appeal from Chancery Court, Pike County; W.R. Chapman, Chancellor.
Bill by W.F. Mathews and another against the J.S. Carroll Mercantile Company, which filed a cross-bill. From a decree sustaining demurrers to the bill as amended and overruling demurrers to the cross-bill, complainants appeal. Affirmed.
A.G Seay, of Troy, for appellants.
A.B Foster, of Troy, for appellee.
Where a mortgagor and his wife seek, by their bill, the cancellation of a mortgage on land, belonging to the husband, constituting the homestead, in whole or in part, on the ground that the separate acknowledgment of the wife was not taken as the statute requires, the bill is without equity if in it no effectual offer is made to do equity by restoring that which the mortgagor received on the faith of the mortgage; and this "upon the consideration that to allow one to retain the benefits of an agreement which he repudiates, when by doing so he derives an advantage, while the uncomplaining party is subjected to loss, would be plainly inequitable." Grider v. Amer Loan Co., 99 Ala. 281, 12 So. 775, 42 Am.St.Rep. 58; Loxley v. Douglas, 121 Ala. 575, 577, 25 So. 998. In Clark v. Bird, 158 Ala. 278, 48 So. 359, 132 Am.St.Rep. 25, the actor was Bird, the vendee in an executory contract of purchase, and not Clark the vendor; and hence the equitable consideration above stated could not have had application or effect. The third, fourth, and fifth grounds of demurrer, to the amended bill seeking to cancel a mortgage on land constituting the homestead because not separately acknowledged by the wife, were well taken, there being no appropriate offer to do equity in respect of funds received on the faith of the mortgage.
There was no merit in the point taken by the first ground of the demurrer, that the amended bill was multifarious because it sought the cancellation of a single mortgage on lands alleged to be severally owned. Code, § 3095; Truss v. Miller, 116 Ala. 494, 22 So. 863; Ellis v. Vandegrift, 173 Ala. 142, 55 So. 781.
The cross-bill would cancel certain conveyances of real estate, alleged to be unrecorded and voluntary, described in the mortgage and formerly owned by W.F. Mathews, whereby the title to the property was sought to be invested in the wife, Ida Mathews. On a proper interpretation of the cross-bill it is due the respondents in the cross-bill to treat it as defining the cross-complainant as a subsequent creditor; a creditor whose obligation came into being after the voluntary, unrecorded conveyances were executed. In order to warrant the cancellation of even a voluntary conveyance by the debtor at the instance of subsequent creditors there must be shown "mala fides or fraud in fact in the transaction"; and "if actual fraud is shown, it is not of importance whether it was directed against existing or subsequent creditors." The right of the subsequent creditor to have the conveyance canceled depends upon the existence of actual fraud in the transaction. Seals v. Robinson, 75 Ala. 363; Allen v. Caldwell, 149 Ala. 293, 297, 298, 42 So. 855, among others.
The seventh ground of the demurrer to the cross-bill pointed the objection that the allegations of fraud in the executions of the conveyances assailed do not contain sufficient averments of facts, but are predicated of conclusions of the pleader. Fraud is never presumed. It must be alleged and proven to invite or to justify relief by cancellation of conveyances.
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