Owens v. Harris
| Decision Date | 12 March 1931 |
| Docket Number | 8 Div. 247. |
| Citation | 133 So. 6,222 Ala. 461 |
| Parties | OWENS v. HARRIS. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Lawrence County; Jas. E. Horton, Judge.
Bill to cancel a mortgage by William Owens against J. J. Harris, with a cross-bill by respondent. From a decree for respondent complainant appeals.
Affirmed in part, and reversed and rendered in part.
Almon & Almon and S. A. Lynne, all of Decatur, for appellant.
O Kyle, of Decatur, for appellee.
This bill was filed to cancel a mortgage by the mortgagor upon the ground that the land embraced was the homestead and there was no acknowledgment by the wife as required by the statute. Indeed, the mortgage was not only not acknowledged, but recites upon its face that the wife was insane and confined in the asylum.
It is well settled by the decisions of this court that the mortgage of the homestead by a married man is invalid if the wife does not acknowledge same as required by law. Nor does the fact that the wife was insane at the time of the execution of the conveyance afford an excuse that will impart validity thereto. Beaty et al. v. Washam et al., 205 Ala. 92, 87 So. 337; Thompson v. New England Mortgage Security Co., 110 Ala. 400, 18 So. 315, 55 Am. St. Rep. 29. It is also settled that this situation is not controlled by sections 6822, 6823, of the Code of 1923, which apply to an insane grantor and not an insane wife of the grantor. Beaty v. Washam, supra; Sumners v. Jordan, 220 Ala. 402, 125 So. 642; Hall v. Britton et al., 216 Ala. 265, 113 So. 238.
It is also well settled that, when a mortgagor seeks to cancel such a conveyance in a court of equity, he must do equity by restoring the consideration received by him as a condition precedent to obtaining relief. Sumners v. Jordan, 220 Ala. 402, 125 So. 642, and cases there cited. It is insisted by this appellant that, while the mortgage was given for $2,750, at least $2,000 of same was for a past consideration or antecedent debt, and that only $750 of said sum represents a new or subsequent consideration and is the only sum for which he should be accountable, and that the proof shows that sufficient credits have been made, if first applied to this part of the debt rather than to the entire indebtedness, so that this part of same was paid. It may be conceded that the appellant has only to account for the new or subsequent indebtedness as distinguished from the antecedent debt, still we are unable to hold that this was fully paid and the appellant was not entitled to a cancellation unless it...
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