McDaniel v. Mellen

• Decision Date: 21 May 1931
• Docket Number: 2 Div. 975.
• Citation: 223 Ala. 181,134 So. 873
• Parties: MCDANIEL v. MELLEN ET AL.
• Court: Alabama Supreme Court

134 So. 873

223 Ala. 181

MCDANIEL v. MELLEN ET AL.

2 Div. 975.

Supreme Court of Alabama

May 21, 1931

Rehearing Denied June 11, 1931.

Appeal from Circuit Court, Sumter County; Benj. F. Elmore, Judge.

Bill to cancel mortgages by Annie Gray McDaniel against Henry L Mellen and others. From a decree dismissing the bill complainant appeals.

Affirmed.

Henry Upson Sims, of Birmingham, and D. M. Boswell, of York, for appellant.

James A. Mitchell, of Livingston, and Stokely, Scrivner, Dominick &amp Smith, of Birmingham, for appellees.

GARDNER J.

Complainant seeks to establish an interest in the real estate here involved as an heir of her mother, Maggie A. McDaniel, who owned the property and whose death occurred in 1914. To this end the amended bill seeks the cancellation of two mortgages held by defendant Henry L. Mellen, and which were duly foreclosed more than two years before the filing of this suit. One of these mortgages was executed by Maggie A McDaniel and her husband, W. G. McDaniel, to George F. Mellen, in December, 1904, and the other by the same parties to defendant Henry L. Mellen, in January, 1912.

One attack upon these instruments rests upon the contention they were executed by the wife upon her property as security for her husband's debts, and therefore void as violative of section 8272, Code 1923. Each of these transactions represented an actual loan of money by the mortgagee to Maggie A. McDaniel by check payable to her and upon her written application for a loan. In each instance the same attorney represented the mortgagee, and he knew and understood she alone owned the property. The mortgagees had no previous dealings with the parties, but were merely making the loans on advice of their counsel, who attended to the entire matter. Each mortgage contained the recital that it was given to secure the debt of Maggie A. McDaniel. Presumptively these recitals speak the truth, and the burden rests upon complainant to show the contrary. Sample v. Guyer, 143 Ala. 613, 42 So. 106; Lester v. Jacobs, 212 Ala. 614, 103 So. 682; Hall v. Gordon, 189 Ala. 301, 66 So. 493.

In the George F. Mellen transaction of 1904, there were several older mortgages which were duly transferred to said Mellen, and which recited likewise that the indebtedness was that of Maggie A. McDaniel, and, at the time of the loan by defendant H. L. Mellen, these mortgages, with that of the George F. Mellen mortgage, were transferred to said defendant as better security. Some of the older mortgages appear to have represented the purchase money due by said Maggie A. McDaniel.

True, it may be a part of the funds were used to pay some debts of the husband, but the proof shows that, without previous transaction between the parties, these mortgagees made the loans in good faith on application of the wife, the checks payable to her, and the fact, if it be a fact, that she permitted the husband to pay with some of the money any debts of his own would not constitute a violation of the statute and invalidate the loan. Hall v. Gordon, supra.

We are clear to the view complainant has failed to sustain the burden of proof resting upon her in this regard, and that relief could not be founded upon this theory of the bill.

Complainant makes the further attack upon the validity of these mortgages, that the grantor, Maggie A. McDaniel, was of unsound mind. While there is evidence tending to show unsoundness of mind at certain periods, yet the proof fails entirely to disclose such condition was permanent in its nature, and the burden rested on complainant to show mental incapacity at the time of the transaction. Johnston v Fondren, 204 Ala. 656, 87 So. 94; Harris v. Bowles, 208 Ala. 545, 94 So. 757; Pritchard v. Fowler, 171 Ala. 662, 55 So. 147. That complainant has wholly failed to sustain this burden as to the George F. Mellen mortgage of 1904, we consider too plain for discussion. As to the mortgage of 1912 to H. L. Mellen...