Pacific Guano Co. v. Anglin

• Decision Date: 25 February 1887
• Parties: PACIFIC GUANO CO. v. ANGLIN.
• Court: Alabama Supreme Court

1 So. 852

82 Ala. 492

PACIFIC GUANO CO. v. ANGLIN.

Supreme Court of Alabama

February 25, 1887

Appeal from chancery court, Barbour county.

Bill in equity for injunction and cancellation of mortgage.

The bill in this case was filed by the appellee, Mrs. Ellender C Anglin, wife of T. N. Anglin, against the appellant, the Pacific Guano Company, and sought the cancellation of a mortgage executed by appellee and her husband, and an injunction of proceedings for a foreclosure of said mortgage. The mortgage was made to Weedon & Dent, by whom it was transferred to the Pacific Guano Company, and purported to have been given to secure an indebtedness of appellee and her husband to said Weedon & Dent of $2,039, evidenced by two promissory notes for that amount. One of these notes was for $1,475, and payable to Weedon & Dent, and the other was for $564, and payable to Weedon & Dent, "agents for Pacific Guano Company." The first note was for an indebtedness created at the time, and the other was given in compromise of an antecedent indebtedness to the appellant. The mortgage recited that the said amount for which the mortgage was given, was obtained as an advance to make a crop. The mortgage and notes were executed simultaneously. On final hearing a decree was rendered granting a perpetual injunction, and declaring the mortgage satisfied as to the appellee.

A H. Merrill, for appellant.

J M. White and H. D. Clayton, Jr., contra.

CLOPTON J.

Mrs Anglin seeks by the bill, which was brought by her, to have canceled a mortgage made by her and her husband, embracing lands being her statutory separate estate, and to enjoin appellant from selling the lands under a power contained in the mortgage. The removal of her disabilities, and her capacity to mortgage the lands, are conceded. Its execution is duly acknowledged before a proper officer, whose certificate is attached. The ground of impeachment is that she was induced to sign the mortgage by reason of misrepresentations of its contents, on which she relied. The alleged misrepresentations consist in a statement by her husband that the mortgage was only intended to secure money advanced to make a crop, and a recital in the mortgage that the sum of money therein mentioned was obtained for the purpose of making a crop; whereas, in fact, it was intended to secure, not only the money advanced, but an antecedent debt due by her husband to appellant. The bill alleges that the money advanced has been paid by the proceeds of cotton delivered to the mortgagees, and that the only sum unpaid is the note due to appellant. The controversy is wholly between complainant and appellant.

There can be no question of the general rule that a conveyance or other instrument is inoperative if the signature of the party sought to be charged is obtained by false representations of its contents, of which he is ignorant, whereby he is induced to make an instrument which he did not intend. This constitutes fraud in the execution. But in such case there must be satisfactory proof of the misrepresentation, and its inducement operating at the time of execution. The only witnesses examined to prove the misrepresentation are complainant and her husband. The testimony of the husband is greatly impaired by the contradictory statements of Watson and Dent as to the circumstances under which the debt due appellant was incorporated in the mortgage, and the rate of interest at which the time of payment was extended. Our conclusion from the evidence is that Anglin, being unable, by reason of financial embarrassment, to make a crop without procuring advances, negotiated with Weedon & Dent for an advance of money to enable him to cultivate the lands. Complainant, on being informed of these facts, consented to give a mortgage on her lands to secure the money advanced. Afterwards, Anglin, being pressed for payment of notes which he owed appellant, then past due, and containing a waiver of exemptions of personal property, compromised the indebtedness by a reduction of the original amount, and an extension of the time of payment, without interest, agreeing to secure the same by mortgage; and, to avoid the necessity and expense of two mortgages, the note given on the compromise was by agreement included in the mortgage in controversy. The notes and mortgage were delivered to Anglin for execution, and on the next day were signed by him and complainant. While both complainant and her husband testify that she was not informed that the mortgage included the note to appellant at the time she signed it, and the testimony of the husband leaves to inference that at this time he told her that the mortgage was for borrowed money with which to cultivate the lands, the evidence fails to satisfy us that any representation of the contents, or of the debts secured by the mortgage, was made at the time of execution, or at any time after the agreement to include appellant's note in the mortgage. Fraud in the execution, as we collect from the evidence, is claimed, on the statement of the husband to complainant of his inability to cultivate the lands unless he could obtain advances, her consent to give a mortgage for this purpose, and her subsequent signature of the mortgage, without being...