Myers v. Steenberg

• Decision Date: 13 October 1921
• Docket Number: 1 Div. 172
• Citation: 90 So. 302,206 Ala. 457
• Parties: MYERS v. STEENBERG.
• Court: Alabama Supreme Court

90 So. 302

206 Ala. 457

MYERS v. STEENBERG.

1 Div. 172

Supreme Court of Alabama

Oct. 13, 1921

Appeal from Circuit Court, Baldwin County; John D. Leigh, Judge.

Bill by Alfred C. Steenberg, as trustee, against Charlotte S. Myers and her husband to foreclose a mortgage or deed of trust. Decree for complainant, and respondent, Charlotte S. Myers appeals. Affirmed.

Rickarby & Beebe, of Bay Minette, for appellant.

Harry T. Smith & Caffey, of Mobile, for appellee.

MILLER J.

Alfred C. Steenberg as trustee and mortgagee files this suit in equity against Charlotte S. Myers and her husband, William P Myers, the mortgagors, to foreclose a mortgage or deed of trust on real estate in Baldwin county. The complainant is trustee for a corporation known as Southwestern Port Huron Company. Its name was afterwards changed to Port Huron Company. It succeeded to all the rights and property of the former corporation. William P. Myers makes no defense. There was decree pro confesso against him. Charlotte S. Myers files answer and cross-bill, alleging the real estate mortgaged was her separate estate; that the mortgage was without consideration; the debt, if any, secured by the mortgage was her husband's, and she was surety; and that the mortgage being thereby void, should be canceled as a cloud on her title. The complainant admits the real estate is her separate property, but avers the debt secured by the mortgage on it is her individual or joint and several debt with her husband. There was a decree by the court below, fixing the amount of the mortgage debt, finding the wife legally liable therefor, and directing her real estate therein to be sold to pay it. From this decree Charlotte S. Myers appeals and it is assigned as error.

The wife shall not become surety, directly or indirectly, for the husband. If she does the notes and mortgage evidencing it are void as to her and her separate property. Richardson v. Stephens, 122 Ala. 301, 25 So. 39; section 4497, Code 1907.

The execution of the notes and mortgage is admitted. They are introduced in evidence. Their faces purport a joint obligation of the wife and husband. This being true, a prima facie case of joint and several liability is made by complainant. Griffin v. Dawsey, 196 Ala. 218, 72 So. 32. This places the burden of proof on the wife, who assails the notes and mortgage, to establish their invalidity by showing there was no consideration for them or the debt was that of the husband only, and not their joint obligation; that she was surety only. Interstate Bank v. Wesley, 178 Ala. 186, 59 So. 621; Hall v. Gordon, 189 Ala. 301, 66 So. 493. The evidence must be clear and convincing to overcome this prima facie presumption created by the introduction of the notes and mortgage, their joint execution, with their written recitals of a joint obligation therein. Without such clear and convincing proof the courts can and will not declare such instruments null and void. Maxwell v. Herzfeld, 149 Ala. 67, 42 So. 987; Gafford v. Speaker, 125 Ala. 498, 27 So. 1003.

Charlotte S. Myers and her husband are nonresidents. They reside in the state of Illinois. They were in that state when the notes and mortgage were executed. The complainant's corporation was doing business in Illinois. All the transactions involved in this litigation were consummated there between the parties to this cause. This mortgage contains this clause:

"And it is hereby agreed and declared that this indenture and the notes secured hereby, are made under and are in all respects to be construed by the laws of the state of Alabama."

Similar statements in mortgages have been considered and construed by this court in connection with the particular facts of each case to determine by what law the contract is governed. Ashurst v. Ashurst, 119 Ala. 219, 24 So. 760; A.F.L.M. Co. v. Sewell, 92 Ala. 163, 9 So. 143, 13 L.R.A. 299; Falls v. Loan Co., 97 Ala. 417, 13 So. 25, 24 L.R.A. 174, 38 Am.St.Rep. 194. In Alabama we have a statute that fixes the lex loci of the contract, so far as it applies to real estate in Alabama of the wife, she being at the time a nonresident. It reads:

"All contracts concerning real *** property situated in this state, entered into by married women who are not residents of this state at the time of entering into such contracts, have the same force and validity as if such contracts were made by married women residing in this state." Section 4500, Code 1907.

So this makes the law of Alabama applicable under the facts of this case relating to the venue of the contract. When the facts are found from the evidence on the issues by the court, it must apply the law of Alabama to them. Thus it becomes a question of fact to be determined by the court from the evidence.

Has Charlotte S. Myers overcome by clear and convincing proof the presumption of liability, joint liability, placed on her by law under the evidence of complainant? The testimony is in sharp conflict. There is deposition testimony on each side and written documentary evidence by each party, indicating the correctness of the contentions averred by each in the issues. Many of...