Nicrosi v. Walker
| Decision Date | 17 December 1902 |
| Citation | 135 Ala. 353,33 So. 161 |
| Parties | NICRCSI v. WALKER ET UX. |
| Court | Alabama Supreme Court |
Appeal from city court of Montgomery; A. D. Sayre, Judge.
Foreclosure proceedings by John B. Nicrosi against Hal T. Walker and wife. From a decree overruling complainant's exceptions to the sufficiency of the wife's special plea, he appeals. Reversed.
Watts Troy & Caffey, for appellant.
Gunter & Gunter, for appellees.
The only question presented by the record in this case is the sufficiency of the plea of Mrs. Bessie W. Walker to the bill filed against her and her husband, Hal T. Walker, for the foreclosure of a mortgage executed by them upon certain lands assigned to the wife as part of her share of her father's estate. The bill avers that "on the 4th day of October 1883, the complainant loaned to the said Hal T. Walker and Bessie W. Walker sixteen hundred and fifty dollars, and as evidence of said loan the said Hal T. Walker and Bessie W Walker executed and delivered to complainant their promissory note dated October 4, 1883, and due October 1, 1884, and to secure the payment of said note executed and delivered the mortgage here sought to be foreclosed." It further appears from the bill that there was a marriage contract declaring that the property of the said Bessie W. Walker then Bessie Ware, should be and remain for her sole and separate use free from the debts and contracts of her husband, and according to the husband certain interests in the rents and profits of her estate for the term of his life. It further appears that on the 29th day of June, 1882, the city court of Montgomery, in equity, rendered a decree relieving the said Bessie W. Walker from the disabilities of coverture, and granting to her all the rights authorized by the statute. It is averred in the plea of the wife "that at the date of the execution of said note and mortgage she was the wife of said Hal T. Walker, who, by virtue of said relation, as well as by the terms of the marriage contract set out in said bill, was in a position of trust and confidence to her and to her estate, and that said debt to complainant was and is the individual debt of said Hal T Walker, and that complainant, well knowing the position of confidence towards respondent occupied by the said Hal T. Walker, received and accepted respondent as joint maker of said note and mortgage set out in said bill, and as surety therefor for said Hal T. Walker, without respondent having any competent and independent advice respecting her making said engagement for the security of said debt; and respondent pleads that her signature to said note and mortgage was obtained by the undue influence of said Hal T. Walker, and pleads the foregoing facts in bar of any relief against her." The capacity of Bessie W. Walker to mortgage her property to secure her husband's debt is not questioned. The defense presented by the plea is solely that her signature to the note and mortgage was obtained by the undue influence of the husband, and without independent advice. The relation of husband and wife is classed among what is termed "the confidential relations" of life, such as guardian and ward, attorney and client, trustee and cestui que...
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...Land Mortgage Co. v. Thornton, 108 Ala. 258, 19 So. 529, 54 Am.St.Rep. 148; Giddens v. Bolling, 99 Ala. 319, 13 So. 511; Walker v. Nicrosi, 135 Ala. 353, 33 So. 161. It familiar law that a sale in conformity to and in execution of a power contained in a mortgage is as effectual to cut off a......
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... ... Griffin, 137 Ala. 466, 34 So. 378, Pratt Land & ... Improvement Co. v. McClain, 135 Ala. 452, 33 So. 185, 93 ... Am. St. Rep. 35, and Walker v. Nicrosi, 135 Ala ... 356, 33 So. 161, are different from this case in this: That ... there was a consideration paid out by the defendant ... ...
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... ... affect its validity. Pacific Guano Co. v. Anglin, 82 ... Ala. 492, 1 So. 852; Walker v. Nicrosi, 135 Ala ... 353, 33 So. 161; Mohr v. Griffin, 137 Ala. 456, 34 ... So. 378; Bode v. Jussen, 93 Neb. 482, 140 N.W. 768; ... Riggan v ... ...
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Boddie v. Ward
...founded upon the relations of confidence is applicable. We think, and so hold, that the principle decisive of the case of Walker v. Nicrosi, 135 Ala. 353, 33 So. 161, likewise decisive, in this respect, of the case at bar. In Walker v. Nicrosi, supra, a plea was filed by Mrs. Walker, in whi......