Mohr v. Griffin

• Decision Date: 14 May 1903
• Parties: MOHR ET AL. v. GRIFFIN.
• Court: Alabama Supreme Court

34 So. 378

137 Ala. 456

MOHR ET AL. v. GRIFFIN.

Supreme Court of Alabama

May 14, 1903

Appeal from Chancery Court, Bullock County; W. L. Parks, Chancellor.

Suit by Ada J. Griffin against M. Mohr and another. Decree for complainant. Defendant Mohr appeals. Reversed.

Lomax Crum & Weil and Jinks & Blue, for appellant.

Tom S Frazer and Norman & Baldwin, for appellee.

HARALSON J.

The facts of the case are substantially, that prior to the 1st day of April, 1899, the complainant, Ada J. Griffin, a married woman, the wife of J. E. Griffin, owned and possessed 610 acres of land described in the bill, lying in Bullock county, on which she and her husband resided; that the complainant purchased the lands from her father, J. E Hightower, in October, 1897, and he made her a deed thereto but there remained due and owing to said Hightower on the purchase money for said land, the sum of $803.07, to secure which she had promised to give him a mortgage on the lands. Mrs. Griffin had borrowed $1,600,--a part of the money with which to pay her father for the lands,--from the American Freehold Mortgage Company of London, and also the sum of $128 from the Land Company of Alabama, to secure which, she and her husband had executed mortgages on said lands to said companies respectively, which sums, together with the $803.07, aggregated $2,531.07 she owed on the lands, besides what interest there may have accumulated. J. E. Griffin, the husband of complainant, had been cultivating these lands under lease from his wife, for several years prior to 1898, and owned the stock and personal property with which he did the farming. He procured advances to make the crops in these years from the defendant, M. Mohr, of Montgomery, and to secure him therefor, mortgaged to him from year to year the crops to be grown on the lands, and all his personal property, including the mules and horses, etc., with which he ran the farm. On the 1st of April, 1898, the debts which said J. E. Griffin owed the defendant on these several mortgages, amounted to about $1,445. Defendant had refused to make further advances. Griffin was anxious and concerned to be put in position by which he could secure advances, and Hightower was concerned to collect his $803.07, due him on the land, or to have it secured. They came to Montgomery to see defendant, and as a result of a conference between them, according to defendant's version of it, which the evidence tends to support, defendant stated that he was willing to pay the debt Mrs. Griffin owed Hightower on the land, and sell and transfer to her the debts he held against her husband, J. E. Griffin, secured by the mortgages referred to, amounting to about $1,445, which, with the $803.07 she owed to Hightower, aggregated $2,248.07, if Mrs. Griffin would execute to him a mortgage on her said lands to secure the payment of said sum. Whether defendant or said Hightower and Griffin proposed this arrangement does not certainly appear, but it can make no difference which, as it was no more than preliminary negotiations for an arrangement to be carried out in the future, if consented to. Some month or six weeks after this conference, and on the 1st April, 1898, J. E. Griffin and his wife, the complainant, came to Montgomery to see the defendant, with the view of carrying said proposed arrangement into effect. After their arrival, they conferred with defendant, and as a result, they repaired with him to the office of the attorneys of defendant, to which place also the attorney of Griffin, with whom Griffin had already conferred, was invited. The most of the business day was spent at this office in talking over the proposed arrangement, and in the preparation of the several papers that were executed on the occasion, carrying into effect the agreement that was reached. The first paper was a mortgage, by Mrs. Griffin, joined in by her husband, on said lands to secure a note by her and her husband, of the same date, for $2,248.07, payable on the 1st April, 1903, with five interest notes for the interest for each year payable, respectively, on the 1st April each year thereafter, the last note, for $60, being payable on 1st April, 1903. The mortgage recited that the indebtedness was from complainant, Mrs. Griffin, to defendant, loaned to her by him. It provided that on default in payment of the interest as it became due on said notes, at the option of the defendant, the mortgagee, the whole sum of money secured should become due and payable and the mortgage liable to foreclosure. It also recited, that it was given subject to the prior mortgage of said two loan companies. The second was a paper, by which it was arranged, that if the mortgage was not paid at maturity, it might on conditions mentioned therein be extended for another five years, making it ten years in which Mrs. Griffin might, if needed, and conditions were complied with, be indulged by defendant in the payment of her said mortgage debt and interest. This contract was signed by the complainant and the defendant, by and with the consent of J. E. Griffin, the husband of complainant.

There was, at the same time, executed by the complainant and the defendant, with the written consent of complainant's husband indorsed thereon, another agreement, reciting the execution and delivery by complainant to defendant, of said mortgage, the object of which, as it appears on its face, was to put in written form, and not to leave it open for dispute, what was the real consideration on which said mortgage, and the contract between the parties in reference to the same had been executed. It appears, as plainly as it had been written out on the face of the paper itself, what the real purpose and agreement between the parties were, so as to preclude any dispute in reference thereto, such as we have before us now. The paper recited: "It is understood and agreed between the said Ada J. Griffin and Michael Mohr, that the said consideration [of the mortgage] is composed as follows: Eight hundred and eight and 3/100 dollars ($808.03) which was advanced in cash this day by the said Michael Mohr to the said Ada J. Griffin, for the purpose of paying the same to J. E. Hightower, in payment of the balance due him by the said Ada J. Griffin, as purchase money for the lands so mortgaged by the said Ada J. Griffin to the said Michael Mohr; fourteen hundred and forty 04/100 dollars ($1,440.04) for the purchase by the said Ada J. Griffin from the said Michael Mohr of certain indebtedness, amounting to said sum, due to the said Michael Mohr by the said J. E. Griffin, which said indebtedness is secured by certain mortgages on the property of J. E. Griffin. The claim held by the said Mohr against the said J. E. Griffin, has this day been transferred to the said Ada J. Griffin, and the said sum of fourteen hundred and forty and 4/100 dollars ($1,440.04) is the amount agreed to be paid by her in payment of said transfer."

As if this were not enough to foreclose all dispute as to the transaction, a receipt was, at the same time, executed by complainant to defendant acknowledging the delivery to her by defendant of seven different mortgages by J. E. Griffin to defendant, in different amounts, the first for the year 1894 for $600, and the last, dated January 5, 1897, and payable on the 1st of September, 1897, for $1,445, together with the notes mentioned in each mortgage, which receipt stated: "All of said papers have this day been sold and transferred to me by the said M. Mohr, and which were held by him to secure an indebtedness due by the said J. E. Griffin to him, amounting to the sum of $1,440.04, which said indebtedness has been sold and transferred to me this day by the said M. Mohr together with the above-described papers."

Mr. Weil, the attorney who prepared the papers for the parties, as he was instructed by them to do, testified that each of said papers were signed in his presence by the parties purporting to have signed them; that they were all read over and explained to Mrs. Griffin and her husband who were present; that Mr. J. D. Norman, an attorney from Union Springs, was present at the time, and examined the papers for Mrs. Griffin before they were signed. He also testified, that nothing was said by defendant in his presence either to Mrs. or Mr. Griffin in reference to the execution of the papers by Mrs. Griffin, as surety for her husband's debt, and that witness explained to complainant and told her what the papers were; that he delivered to Mrs. Griffin the papers mentioned in the receipt at the time she executed the same.

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