New v. Young

• Decision Date: 16 February 1905
• Citation: 39 So. 201,144 Ala. 420
• Parties: NEW ET AL. v. YOUNG.
• Court: Alabama Supreme Court

39 So. 201

144 Ala. 420

NEW ET AL. v. YOUNG.

Supreme Court of Alabama

February 16, 1905

Appeal from Chancery Court, Mobile County; Thomas H. Smith Chancellor.

Suit by William Young against Martha New and another. Decree for complainant. Respondents appeal. Reversed.

This was a bill filed to cancel a deed from Martha New to Charles New and one from Charles New to George New, made on June 16 1900, as a cloud upon the title of complainant, or, in the alternative, to enforce a mortgage made by Martha Baker subsequently Martha New, to the complainant on May 12, 1898. The allegations of the bill are that prior to May 12, 1898 Martha New, who was then Martha Baker and unmarried, became indebted to the complainant in several sums of money, and that on the 12th of May, 1898, she borrowed the further sum of $100 from complainant and gave him a mortgage for it, agreeing verbally that if she did not pay the mortgage debt at maturity the complainant could pay her an additional sum of $100, and she would make him a conveyance of the property. Complainant neglected to record his mortgage until June 12, 1901. In 1900 Martha Baker married George New, and on the 16th day of June, 1900, George New suggested to his wife that they could defeat Young's mortgage by having a deed of the property made by Martha New to Charles New, a brother of George, and then have Charles New convey the property to George New. Martha New, Charles, and George New went before a justice of the peace, and Martha New made a conveyance of the property, which was worth about $500, to Charles New for a consideration of $10, which Charles New handed to Martha New. Martha New handed the $10 to George New, and when the justice of the peace was engaged in fixing the deed Charles New handed George New an additional $10. George New then, without leaving the office of the justice of the peace, purchased the property from Charles New for $20. Charles New made a deed to George, and George handed him the $20 he had received from Charles New, and took the deed. After this George New abandoned his wife, and on June 12, 1901, while the abandonment existed, complainant, without any knowledge of the making of the deed to Charles New, and by Charles New to George New, carried into effect his original agreement with Martha New, formerly Martha Baker, by paying her $100, and accepting from her a conveyance of the property in satisfaction of her indebtedness to him, and for the further consideration of the $100 paid. The property in question had formerly been the homestead of Martha Baker (subsequently Martha New), but she was not residing upon that property, either at the time of the conveyance to Charles New, or at the time of her subsequent conveyance to William Young, nor had she filed in the probate court any claim to the property as a homestead. On the contrary, at the time that the conveyance was made to Charles New, George New and his wife had left the property and made their home with the relatives of the husband; and at the time of the conveyance to Young Martha New had left the property and was living at an entirely different place. The register was requested to issue the commission in the cause to Messrs. J. Blocker Thornton and William B. Inge, Jr., to take the testimony of certain witnesses. In accordance with the request, a commission was issued to said named parties. Only one of the persons named as commissioner acted, who was J. Blocker Thornton; and before him the testimony was taken, and the defendants appeared and cross-examined said witnesses. The defendants subsequently moved the court to suppress the whole of the depositions of the witnesses taken before the commissioner, J. Blocker Thornton, upon the ground that the commission was issued to said Thornton and Inge jointly, while the depositions of said witnesses were taken before said Thornton, acting alone. This motion was overruled. The facts of the case necessary to an understanding of the decision on the present appeal, are sufficiently stated in the opinion.

Francis J. Inge, for appellants.

Gregory L. & H. T. Smith, for appellee.

McCLELLAN C.J.

The commission to depositions for the complainant in this case was addressed to J. Blocker Thornton and Wm. B. Inge, Jr. but it in terms authorized them severally to take and certify the depositions. Under such a commission it is competent for either one of the commissioners to act without the other; a proposition fully recognized in Montgomery Street Ry. Co. v. Mason, 133 Ala. 508, 32 South, 261. Moreover, had the commission been addressed to the...