Maxwell v. Herzfeld

• Decision Date: 24 January 1907
• Citation: 149 Ala. 67,42 So. 987
• Parties: MAXWELL v. HERZFELD ET AL.
• Court: Alabama Supreme Court

42 So. 987

149 Ala. 67

MAXWELL v. HERZFELD ET AL.

Supreme Court of Alabama

January 24, 1907

Appeal from Chancery Court, Coosa County; W. W. Whiteside Chancellor.

Suit by Susan P. Maxwell against Rosa Herzfeld and others. From a decree in favor of defendants, complainant appeals. Affirmed.

The case made by the bill is that orator was the owner and possessor of certain real estate, which was and is her statutory separate estate, and that her husband owed Herzfeld & Foshin a sum of money, and to pay said sum she sold the real estate to Herzfeld, who applied the purchase money to the payment of the debt due the firm. She alleges that the deed, absolute on its face, was intended for a mortgage to secure Herzfeld for his payment to his firm, and that the land was to remain hers as long as her husband paid the legal interest on his debt. The bill seeks to declare the deed a mortgage, and to declare it void as a mortgage, for that it was an attempt to secure the husband's debt. The respondent denied that the deed was intended to be a mortgage, but alleged a straight purchase of the land without reservation, and without any intention of placing the same as security for the debt of orator's husband. Respondent further alleged that he paid full value for the land and received an absolute conveyance of the same. The tendencies of the evidence are sufficiently set out in the opinion. The chancellor denied the relief prayed for, holding the deed in the case, not a mortgage, but a conditional sale. From this decree this appeal is prosecuted.

Felix L. Smith, for appellant.

George A. Sorrell, for appellees.

TYSON C.J.

The bill in this cause seeks to have a certain deed, absolute on its face, executed by complainant to one Herzfeld, declared a mortgage, and then to have the mortgage declared void because given to secure the debt of her husband, in violation of section 2529 of the Code of 1896, which declares "the wife shall not, directly or indirectly, become the surety of the husband." From this statement it will be observed that the bill is not one for redemption, recognizing the validity of the mortgage, should the evidence warrant the finding of the fact that it was the intention of the parties that such should be the nature and character of the deed. Does the evidence establish the fact that the deed was intended by both parties to be a mortgage--a mere security for a debt? The burden of proving the affirmative of the proposition by clear and convincing...