Metropolitan Life Ins. Co. v. Estes

• Decision Date: 17 May 1934
• Docket Number: 6 Div. 566.
• Citation: 228 Ala. 582,155 So. 79
• Parties: METROPOLITAN LIFE INS. CO. v. ESTES et al.
• Court: Alabama Supreme Court

155 So. 79

228 Ala. 582

METROPOLITAN LIFE INS. CO. v. ESTES et al.

6 Div. 566.

Supreme Court of Alabama

May 17, 1934

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action in ejectment by the Metropolitan Life Insurance Company against Walter F. Estes and wife. From a judgment for defendants, plaintiff appeals.

Affirmed.

Cabaniss & Johnston and Smyer, Smyer & Bainbridge, all of Birmingham for appellant.

J. C Burton, of Birmingham, for appellees.

THOMAS Justice.

The suit was statutory (Code 1923, § 7452 et seq.) ejectment.

Count 2, upon which the trial was had, was stated in Code form.

Defendants' pleas were the general issue, and special pleas alleging that the property sought to be mortgaged was and is the homestead of defendants; that the plaintiff claims title to said property under a foreclosure deed which is founded on a mortgage purporting to be signed and acknowledged by the defendants; that said mortgage was not signed and acknowledged by defendants as required by the statute (Code 1923, § 6838 et seq.).

The principal question for decision is presented by the refusal of the general affirmative charge requested by the plaintiff. The rules governing the giving and refusal of such instructions need not be restated. McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135.

We have examined the evidence and there are conflicts, or reasonable inferences thereof, that justified the refusal of such charge and warranted the submission of the controverted facts-that of the due execution of the mortgage by Estes and wife to Jemison & Co., Inc.,-to the jury.

The defendants' testimony was unequivocal and positive, to the effect that they, or either of them, did not acknowledge the execution of the mortgage; that they did not know the officer purporting to have taken their acknowledgments at the time or until after the mortgage loan was made; that one Feld, an employee of Jemison & Co., came to their home with the mortgage and had them sign; that the alleged officer making the certificates of acknowledgment was not present; and that thereafter they never appeared before such officer and acknowledged before him the execution of the mortgage.

Defendants further testified that at the time the property sought to be so incumbered and conveyed was their homestead; that Jemison & Co. negotiated or made the loan; that they received the proceeds thereof, and subsequently made payments on account of that mortgage debt.

The mortgage in question is not witnessed, but purports to have been acknowledged by the respective grantors before the notary public making the alleged certificates of acknowledgments which are in the form prescribed by the Code for a husband and wife, and there purports to have been a separate acknowledgment by the wife.

The alleged notary public as a witness for plaintiff testified that the signatures to the certificates affixed to the mortgage were those of witness; that he had no "positive recollection of taking the acknowledgment to those papers"; that he recalled having seen Mr. Estes before, but as to whether or not he recalled ever having seen Mrs. Estes before, testified merely that "her face is familiar," yet he could not swear that they came before him and "acknowledged said mortgage," saying, "I haven't got a sufficient recollection of it." He further testified that he handled several hundred transactions that year and did not know whether witness "closed this transaction" unless his signature was on the check orders, or somewhere in the file that would so indicate; that he had no independent recollection as to the matter.

On cross-examination that witness stated that he could not say positively that he had a record of Mr. and Mrs. Estes acknowledging that thing before him; that the chances are that he did; that if he had such a record (section 9244, Code) he would say "that I destroyed it"; that he took acknowledgments generally at "the office of Jemison and Company," and "occasionally went out of the office to take acknowledgments"; that he did not know whether he went out to the residence of Mr. and Mrs. Estes to take their acknowledgments to this mortgage, only knew where their home was located; had no recollection of having ever been in the house; did not recall where they were living at the time this mortgage was made; could not say whether Mr. Estes, Mrs. Estes, or Mr. Feld was there, nor whether as a matter of fact he (Starke) examined the mortgagor at the time the paper was signed; that as a matter of fact, he did not know what transpired in this case. Witness concluded by saying, "All I know is that this is my signature on this mortgage."

The mortgage was to Jemison & Co., Inc., and duly transferred by it to the plaintiff in ejectment. There was foreclosure and auction deed to the plaintiff. And there was an alleged lease for rent in the name of the mortgagors to the Metropolitan Life Insurance Company of subsequent date, reciting that the latter was the owner of the property under foreclosure deed.

The mortgagors deny acknowledgment before the notary public in question, saying Mr. Feld, acting for Jemison & Co., was the only person at their home when he procured the execution of the mortgage, and that their signatures were not acknowledged, that Mr. Feld did not witness the execution, and was not such an officer.

The witness, Walter F. Estes, said:

"I signed the papers out there on the lot. Mr. Frederick A. Feld brought them out to me. 'As to all was present at that time,' I say, 'Mr. Feld, Mrs. Estes and myself.' Just we three were present. When Mr. Feld brought those papers out there, he said it was out of the ordinary, that it wasn't customary for the man who makes the loan to take acknowledgments of the signatures; that it had been agreed in that case, it was all right. He stated that they were going to let him take the signatures. We signed the mortgage-this paper that is in question. I signed the paper out there and Mrs. Estes signed it. When she signed it we three were together in the same room. Mr. Feld is a reserve officer and he was called to camp two weeks ago. He is in the Reserve Officers Corps. He was here in Birmingham until two weeks ago. He was called out of the City by the United States Government. 'As to whether I know where he is now,' I will say, 'I judge he is still in camp.' * * * Mrs. Estes signed that. She signed it right there in my presence. She never went out of my presence while he was out there. We all never did separate. I do not know Mr. George C. Starke. I don't know that I have ever seen him. Mr. George C. Starke never took my acknowledgment. In answer to the question: 'Did you go to Jemison and Company's office a few days after you signed the mortgage?' I say, 'I went there right soon for the check.' At the time I got the check I signed a receipt for it. Nobody took my acknowledgment while I was in Jemison and Company's office. My wife did not go with me and Andy A. Hinkle was the party there with me. Mr. Hinkle was the only person who went there with me at that time. Mr. Hinkle was the man who built that house. I had no knowledge whatsoever as to whether Mrs. Estes ever went down there and had her acknowledgment taken. A Notary Public never came around at any time while I was present to take an acknowledgment of Mrs. Estes."

Mrs. Estes, one of the defendants, testified:

"The only thing I know about the loan that was negotiated in 1927 is that they brought out some papers for me to sign. Mr. Fred A. Feld brought the papers. Mr. Feld is our next door neighbor. I had not discussed the loan with Mr. Feld. I understand that Mr. Feld was connected with Jemison and Company at that time. I don't know the exact hour in 1927 that Mr. Feld came over there with some papers for me to sign, but it was late in the afternoon. Mr. Estes always quits work at six and he came early that afternoon because he knew Mr. Feld was coming. He had told me that he was coming. Mr. Feld did come over to our house and Mr. Estes, Mr. Feld, myself and a year old baby were present. No one came with Mr. Feld. * * * He told me though that he was going to bring some one with him. When Mr. Feld came over, we had a table in the center of the room and Mr. Estes signed and he took the baby and I sat down and signed and if Mr. Feld ever signed, I don't know it; I don't recall that. I signed my name, but I didn't even read what I signed. I don't recall that Mr. Feld told me what I was signing. I do recall that he said he was waiving some right. That is all I recall, that he said. Mr. Estes held the baby while I signed the paper. I don't recall that Mr. Feld told me at the time he came over there that he had a paper for me to sign and that it was a mortgage. The paper that you hand me (the mortgage), was handed to me and I took it and signed it. That is my writing and that is my signature. That is where I signed the paper. * * * I do not know a man by the name of George C. Starke and I never saw him in my life. Yes, I have heard of him. I have never really heard of him more than I saw his name on the court house record. I saw his name on the record where the mortgage was recorded. I never heard of him until then. That was the only time I ever signed any paper in connection with this loan that I know of. I signed one paper. I didn't sign any after that, and if I signed more than one then, I don't recall it."

In respect to a due execution under their pleading-the general issue and of non est factum-the mortgage being in evidence and the certificates of acknowledgment being in due form, a prima facie case was made out for plaintiff, and the burden then rested upon the defendants of proving that the property constituted the homestead of the mortgagors (McClendon...