Richardson v. Stephens

• Decision Date: 13 April 1897
• Citation: 21 So. 949,114 Ala. 238
• Parties: RICHARDSON v. STEPHENS.
• Court: Alabama Supreme Court

21 So. 949

114 Ala. 238

RICHARDSON v. STEPHENS.

Supreme Court of Alabama

April 13, 1897

Appeal from circuit court, Barbour county; John R. Tyson , Judge.

Ejectment by A. L. Richardson against J. W. Stephens and E. E Stephens. From a judgment in favor of defendant E. E Stephens, plaintiff appeals. Affirmed.

J. W Stephens filed a plea disclaiming all right of possession and the defendant E. E. Stephens filed the following pleas: "(1) Not guilty. (2) That the land sued for belonged to her at the time the mortgage which is the foundation of plaintiff's title was executed by her and her husband; that she was at the time a married woman, and that she and her husband then resided and have since resided, on said land, and that the debt secured by the said mortgage was the debt of her husband, and that she was and is a surety therefor, and that the mortgage is void. (3) That, at the date of the mortgage under which plaintiff claims, she was the wife of J. W. Stephens; that they were then living as husband and wife on said land, and that the land was her separate estate, and the mortgage was made to secure a debt of the husband, J. W. Stephens."

The plaintiff adduced title from the purchaser of the lands under a foreclosure of the mortgage executed by J. W. Stephens and E. E. Stephens to the British American Mortgage Company, in which the land here sued for was conveyed. The facts of the case pertaining to the defense interposed and the evidence introduced thereon are sufficiently stated in the opinion.

Upon the introduction of all the evidence, the court, at the request of the defendant E. E. Stephens, gave the general affirmative charge in her behalf. To the giving of this charge the plaintiff duly excepted.

There were verdict and judgment for the defendant. The plaintiff appeals, and asssigns as error the giving of the general affirmative charge requested by the defendant.

Gunter & Gunter and P. B. McKenzie, for appellant.

G. L. Comer, for appellee.

HARALSON J.

The court, on the disclaimer of J. W. Stephens, gave judgment against him, but E. E. Stephens, his wife, defended on the ground that the land sued for was hers, as her statutory separate estate; that the mortgage debt was that of her husband, and that she is and was a mere surety on said debt for her husband, and that it and the mortgage on her land were of no force and effect and void as to her.

That the land was her statutory separate estate, and did not belong to the husband, at the time of the execution of said note and mortgage, is not denied. Her title to the land was of record.

If it be true, that Mrs. Stephens executed these papers merely as the surety of her said husband, the act was one forbidden by statute to be done, was illegal and void as to her. The Code in terms (section 2349) declares that "the wife shall not, directly or indirectly, become the surety for her husband." Being an act forbidden by statute to be done, the note on which the wife becomes surety for her husband and a mortgage by her of her statutory separate estate to secure the debt, are void. Hawkins v. Ross, 100 Ala. 459, 14 So. 278; McNeil v. Davis, 105 Ala. 657, 17 So. 101; Lansden v. Bone, 90 Ala. 446, 8 So. 65; Dudley v. Collier, 87 Ala. 431, 6 So. 304; Robertson v. Hays, 83 Ala. 291, 3 So. 674; Heard v. Hicks, 82 Ala. 484, 1 So. 639.

The evidence shows, without any conflict, that the husband of Mrs. Stephens applied for and conducted all the negotiations for this loan and procured it to be made. The debt as contracted was his. The purpose for which he needed the money was not disclosed. He represented that the land he proposed to mortgage to secure the debt was his own. The wife joined him in the execution of the note and mortgage. So far as appears, she knew nothing of the transaction, and nothing was done or said by her, to indicate that the money was for her or her purposes, or that she authorized her husband to act as her agent in the premises, or that she had any purpose to deceive or defraud the lender, or that she signed the papers otherwise than as a mere surety. There was nothing to show that it was her independent transaction, and that the husband was her surety, or signed the papers merely to express his assent and concurrence for her to contract.

It is said that she joined her husband in drawing a draft on part...