Rhodes v. Schofield
| Decision Date | 18 August 1955 |
| Docket Number | 4 Div. 839 |
| Citation | 263 Ala. 256,82 So.2d 236 |
| Parties | C. C. RHODES v. W. B. SCHOFIELD. |
| Court | Alabama Supreme Court |
Baldwin & Baldwin, Andalusia, for appellant.
J. C. Fleming, Elba, for appellee.
This is an appeal from a final decree in equity rendered on a trial heard on testimony given ore tenus before the trial judge.
The bill of complaint was filed by a married man and sought to vacate a mortgage alleged to have been executed by complainant and his wife to respondent to secure an alleged indebtedness of $5,000, borrowed for the purpose of paying to a corporation then being organized, the consideration for capital stock issued to him at the time.
The bill first alleges that complainant and his wife did not execute (sign) the mortgage at all, but complainant does not seem to rely on that contention at this time. There is no doubt but that he and his wife did sign the instrument. In the alternative, the bill alleges that the mortgage was without consideration (this is not supported by the evidence), and that there is no due date of the note which is secured by the mortgage and it is not in default. The theory on which that contention is based is that the note, secured by the mortgage, recites: 'In terms as stated below, I or we promise to pay to the order of W. B. Schofield (respondent) five thousand and no/100 dollars for value received, in lawful money of the United States, without interest payable at the First National Bank of Opp, in Opp, Alabama.' It then contains provisions waiving exemptions and for an attorney's fee, after which is the following: 'The above sum of five thousand dollars ($5,000.00) to be paid by C. C. Rhodes (the complainant) from his share of the profits from the operation of the Opp Livestock Market as said business concern shall ear(n) [sic] profits.' The bill alleges that respondent has advertised the land for sale under the power given in the mortgage. It prays for a cancellation of the mortgage and offers to do equity, but does not seek an injunction of the sale.
An amendment to the bill alleges that the land described in the mortgage (which consists of 105 acres) was occupied by complainant as a homestead at the time of the purported execution of the mortgage; that it purports to be acknowledged before J. C. Rodgers as a notary public in said county; that at that time said Rodgers was not a duly commissioned notary public in said county and had not executed an official bond, and that the mortgage is void for want of proper acknowledgment before an officer authorized by law. It then alleges that respondent has proceeded with a foreclosure sale of the land under the power contained in the mortgage, and at the sale J. M. Chambers became the purchaser; that he has conveyed his interest so acquired to the respondent, and that the sale to Chambers and by him to respondent are clouds on his title and should be cancelled, with prayer for such cancellation and for general relief.
There was no demurrer to the bill as finally amended, but there were answer and cross bill. They admit that complainant and his wife resided on the land as a homestead when the mortgage was executed. Respondent neither admitted nor denied that Rodgers was a duly qualified notary public. (The court found that he was not duly qualified.)
The cross bill alleges that the land included in the mortgage was of the value of $6,000 at the time of the execution of the mortgage, to wit, November 16, 1948; that the land to the extent the homestead exceeds in value $2,000 is subject to said mortgage and as to it the mortgage is not invalid by the failure to have a proper acknowledgment by the wife; that if the mortgage was not duly witnessed or acknowledged, it operates as an agreement to make a valid mortgage to the extent that the land was worth more than $2,000 at that time. It prays that on final hearing the value of the land be appraised and that a homestead of the value of $2,000 be carved out of it and the remainder be subjected to cross complainant's debt, and for general relief. Complainant's answer to the cross bill merely denies in general terms its allegations.
From the evidence taken before the trial judge, he found in substance that complainant's wife signed the mortgage before an officer (Clarence Byrd) who did not certify to an acknowledgment and did not sign it as a witness. That complainant then took it to J. C. Rodgers, 'purporting to be a notary public, although in fact he was not such a notary', and complainant 'at said time placed his signature on said instrument': that he then took the instrument bearing his signature and that of his wife and delivered the same with the note to respondent. 'The court further finds from the evidence that said instrument, namely, said purported mortgage, was not witnessed nor was any acknowledgment taken of C. C. Rhodes (complainant) by any person authorized to do so, the said J. C. Rodgers not being a notary public, and that the said Clarence Byrd never certified, as required by law, the acknowledgment of Mrs. O. B. Rhodes.'
The court found other facts not controverted nor material here to rehearse, and decreed:
(1) The purported mortgage was not duly executed as such and is ineffective to the extent that the land is exempt as a homestead; and not properly executed as a mortgage to the extent that the land exceeds in value $2,000.00, but to that extent it is effective as a contract to execute a mortgage.
(2) That a lien was thereby impressed on such excess.
(3) A personal judgment against complainant was rendered for $5,000.
(4) The foreclosure under the power of sale was declared null and void.
(5) The foreclosure deed was cancelled.
(6) That complainant has thirty days in which to pay said debt of $5,000.00 and the costs of court.
(7) If said debt is not paid in thirty days, the register will hold a reference and report:
(a) The amount of any mortgage indebtedness to the Federal Land Bank secured by a mortgage on all of said land.
(b) The market value of it all on November 16, 1948, 'as though no mortgage had been placed thereon'.
(c) Describe a homestead as of November 16, 1948 not exceeding in value $2,000.00 out of said land, taking into consideration a mortgage, if there is one to the Federal Land Bank, guided by the selection of complainant.
(d) Describe land not included in the selected and approved homestead, also the amount of the mortgage, if any, to the Federal Land Bank that should be charged against said area not so selected.
(8) Further orders and relief were deferred.
Under this heading appellant contends that a personal judgment was improperly rendered against him for $5,000, and bases his argument to that effect upon two propositions: (1) that the note secured by the mortgage was only payable upon a contingency which is not shown to have occurred, and (2) that the debt is payable only out of a certain fund and has no other effect.
Before reaching that contention, we should call attention to the fact that in case of this kind, whether it is a bill to redeem or to cancel a mortgage on the one hand, or to foreclose a mortgage on the other, a personal judgment is only authorized by Equity Rule 119 1/2 ().
With respect to that situation, we observed in the case of Graham v. O'Neal, 242 Ala. 72, 4 So.2d 897, 900:
It is of course well understood that when a mortgage is invalid and the mortgagor files a bill in equity to have it vacated on that account relief will be denied him unless he restores the consideration which he received from the mortgagee. Leonard v. Whitman, 249 Ala. 205, 30 So.2d 241. But a personal judgment therefor is not due to be rendered against such a complainant except as authorized by Equity Rule 119 1/2, supra. To obtain the benefit of that rule it is not necessary that the cross bill pray for the judgment. Qualls v. Union Central Life Ins. Co., 242 Ala. 619, 7 So.2d 558. Therefore, a personal judgment should not have been rendered.
But when a personal judgment is the only error in the decree, it may be corrected on appeal to this Court and, as corrected, the decree in that respect will be affirmed. Winston v. Browning, 61 Ala. 80, 84; Baker v. Young, 90 Ala. 426, 8 So. 59.
We shall now consider appellant's propositions 1 and 2, supra, in this connection. The trial court found that no profits had been earned by the corporation and that there were no prospects of earning any and that operations had been closed since the fall of 1950 and its assets disposed of. The bill of complaint in this suit was filed in June 1951. The evidence shows that after the certificates of stock in said corporation were issued to complainant, he 'put them up' as collateral security for a loan from another party and that they were being so held at the time of the trial.
The court reasoned that the mortgage and note were not void on account of the clauses to which we have referred, and that they did not...
To continue reading
Request your trial
-
Butler v. Olshan, 6 Div. 113
...mortgage complied with the statute of frauds, and the mortgage would be enforceable in equity as a contract to convey. Rhodes v. Schofield, 263 Ala. 256, 264, 82 So.2d 236; Golden v. Golden, 256 Ala. 187, 54 So.2d 460. Defendant's argument on this point is probably correct, but in a suit by......
-
Main Bank of Chicago v. Baker
...reimbursement would be expected, the otherwise unconditional promise to pay would not thus be made conditional. (Rhodes v. Schofield (1955), 263 Ala. 256, 261, 82 So.2d 236, 240; First National Bank v. Lightner (1906), 74 Kan. 736, 739, 88 P. 59, 60; Bank of Viola v. Nestrick (1979), 72 Ill......
- Draper v. Sewell
-
In re Miller
...that account, relief will be denied him unless he restores the consideration which he received from the mortgagee. Rhodes v. Schofield, 263 Ala. 256, 82 So.2d 236, 239 (1955). Even if this court were to find the Mortgage invalid, such that it is incapable of conveying legal title to the Col......
-
Make it an even 10: courts rely on more than the seven Carpenter factors to analyze a claim for undue influence of a will or trust.
...with hopes of breaking down whatever ties of affection existed between the decedent and his family and friends. (9) In Newman v. Smith, 82 So. 2d 236 (Fla. 1919), a beneficiary of a will had intercepted letters and telegrams sent to the decedent by his daughter, ignored all requests contain......