Sansom v. Sturkie, 7 Div. 758.

• Decision Date: 11 May 1944
• Docket Number: 7 Div. 758.
• Citation: 18. So.2d 267,245 Ala. 514
• Parties: SANSOM et al. v. STURKIE.
• Court: Alabama Supreme Court

18. So.2d 267

245 Ala. 514

SANSOM et al. v. STURKIE.

7 Div. 758.

Supreme Court of Alabama

May 11, 1944

Appeal from Circuit Court, Etowah County; W. M. Rayburn Judge.

Motley & Motley, of Gadsden, for appellants.

Dortch Allen & Swann, of Gadsden, for appellee.

THOMAS, Justice.

Bill by a wife for cancellation or redemption of mortgages given by her and her husband on their home.

The pleading is to effect that the wife was the owner of the land described in the mortgage and that prior to April 7, 1916 complainant's husband negotiated a loan thereon of $800 from respondent H. D. Sturkie, and, to secure the loan, executed with her husband the mortgage in question.

On May 27, 1940, complainant and her husband executed a joint mortgage and notes for $1619.25 with interest from date at eight per cent to secure the amount due on the first mortgage. Respondent foreclosed the last mortgage, under its power of sale, and became the purchaser for the sum of $2500.

By amendment the original complainant made her husband a party complainant, and averred that the foreclosure indicated was void under the provisions contained in the mortgage, authorizing foreclosure by posting a written publication of the time, place and terms of sale at the court house door and two other public places in the county, by reason of the fact that the written notice was only posted at the court house door, and not at two other public places.

It is further averred that these mortgages were given to secure the debt of her husband with which she had no connection, and for which she became liable only as surety, in contravention of the provisions of Code 1923, § 8272, Code 1940, Tit. 34, § 74.

The foregoing averments were denied by respondent Sturkie and admitted by the complainant Joe Sansom.

The case being at issue, the taking of the evidence for complainant was concluded by the testimony of Mr. and Mrs. Sansom. When the bill was filed, respondent Sturkie was ill, and his death was suggested to the court. Revivor was had against his personal representative who became a party respondent.

A motion was made by respondent Sturkie to suppress the testimony theretofore taken on several grounds, towit: (1) That the bill had been materially amended by the addition of Joe P. Sansom as a party complainant; (2) that Zada C. Sturkie as executrix of the last will and testament of H. D. Sturkie had been made a party respondent; and (3) "Said testimony was taken for the purpose of evading the provisions of Section 7721 of the 1923 Code of Alabama, Code 1940, Tit. 7, § 433, the party, H. D. Sturkie, against whom said testimony was taken was then upon his death bed, and the witness Joe P. Sansom being interested in the result of the suit adversely to said Sturkie and the matters testified about being transactions between the witness and said H. D. Sturkie, who died shortly after such testimony was taken and without any opportunity to rebut the same." [Italics supplied.]

There was an agreement of counsel that the motions be later disposed of by the trial court which does not appear to have been done. This was not necessary under the Act of the Legislature of 1943, p. 105, Code 1940, Tit. 7, § 372(1); Qualls v. Monroe County Bank, 229 Ala. 315, 156 So. 846. Under the statute, the test as to transactions with deceased persons is that, "in case the witness testified falsely, the deceased, if living, could contradict it of his own knowledge." Sherrill v. Wilhelm, 182 N.C. 673, 110 S.E. 95, 96; Warten v. Black, 195 Ala. 93, 70 So. 758; Delony v. O'Reilly, 235 Ala. 386, 179 So. 207; Williams v. Dent, 233 Ala. 109, 170 So. 202.

In Qualls v. Monroe County Bank, 229 Ala. 315, 156 So. 846, 847, it is stated on many authorities that the well-defined purpose of the statute is "to seal the lips of living parties where death has sealed the lips of others. Both negative and affirmative testimony are within the rule." 117 A.L.R. 609.

In Wesson v. Taylor, 240 Ala. 284, 198 So. 848, 850, the rule as to the class of negative evidence indicated is stated as follows:

"Negative evidence of this character, while throwing some side-light on the transaction involved in the suit, is held admissible, and not within the inhibition of Code, § 7721.

"The statute excludes testimony touching facts coming to the knowledge of the witness through transactions with or statements by the deceased. * * *"

This rule was followed on the second appeal. 242 Ala. 340, 6 So.2d 10.

In Smith v. American Nat. Bank, 229 Ala. 303, 156 So. 856, 857, it is declared: "The note purports on its face a joint obligation of the wife and husband, and therefore a prima facie case of joint and several liability is established. The burden of proof, therefore, rests upon the wife to establish the contrary. * * *"

When the debt is for the joint obligation of the husband and wife, it is void only so far as it was security for the husband's debt. Daniel v. Cummings, 231 Ala. 509, 165 So. 756; Davis v. Elba Bank & Trust Co., 216 Ala. 632, 114 So. 211. And in Marbury Lumber Co. v. Woolfolk, 186 Ala. 254, 258, 65 So. 43, 45, it is declared that the wife, in a proper case, may be bound by the agency of the husband, if he is acting for her.

Recent authorities are to the further effect that where the mortgage recites the debt of the wife, the recital is prima facie true and casts the burden on the wife to show it was given merely as surety of her husband, and to overcome the presumption, the evidence must be clear and convincing. Stroup v. International Life Ins. Co., 218 Ala. 382, 118 So. 752; Hard v. American Trust & Saving Bank, 200 Ala. 264, 76 So. 30. In such cases the court looks through the form to the substance to determine the true facts. Ware v. Hamilton Brown Shoe Co., 92 Ala. 145, 9 So. 136; Ware v. Seasongood, etc., 92 Ala. 152, 9 So. 138. And the materiality and competency of the evidence is to be judged as of the date of the trial and judgment. Sisson et al. v. Swift, 243 Ala. 289, 9 So.2d 891.

The decree of the court is rested as to the matter of suretyship on the testimony of the mortgagors without the testimony of the mortgagee, who was suffering from illness, and was never physically able to testify before his death. The original book accounts were in evidence. From the time the mortgages were made the account was kept in the name of "Mattie L. and Joe P. Sansom." Respondent offered in evidence the mortgagee's book accounts and bills receivable touching the transactions with complainants.

The husband testified on direct examination that he approached Mr. Sturkie some time prior to April 7, 1916, the date of the first mortgage, about a loan of $800.00 for himself, and with which his wife had no connection. In the first part of his testimony, J. P. Sansom stated that something was mentioned about a mortgage and that when he went back on a later day, Mr. Sturkie had the papers filled out and he took them out with a Notary Public for execution. Although the mortgage and notes both indicate that Mattie Sansom must have been considered by Mr.Sturkie as the principal debtor insofar as the mortgage was concerned, J. P. Sansom denied that his wife's name was mentioned during the transaction with Sturkie. However, she signed each document first and it is recited as the joint debt of the mortgagors and makers.

It is unquestioned that the loan was for the purpose of erecting a house on the property described in the bill of complaint which was within sight of where he and his wife lived.

Mattie L. Sansom, on direct examination testified that she had no knowledge of what her husband proposed to do with the money until a few weeks prior to her testimony and that the money was not borrowed on her behalf and she was merely acting as surety for her husband.

On cross-examination of J. P. Sansom it was developed, without dispute, that on March 1st, 1910, and prior to his marriage to Mattie L. Sansom, he purchased from H. D. Sturkie what is known as the Cherry Street or Steve Hood lot for $2,000, the entire consideration being evidenced by mortgage payable at the rate of $25 per month. That J. P. Sansom and Mattie L. Sansom, whom he later married, conveyed the same to W. S. Hood on January 25, 1916, for $2,500, and continued to live on the property until the house erected from the proceeds of the Sturkie loan was completed when they moved therein. The Hood sale was handled through Mr. Sturkie and after paying off the mortgage given to secure the purchase price of the lot they sold to Hood, Sansom had a balance of $654.07 left to his credit with Sturkie, which amount was paid over to him by Mr. Sturkie on February 21, 1916. It was further developed that on February 28, 1916, one week from the day of the above transaction, Mattie L. Sansom purchased the property in question from Osa P. Smith and wife Berdie J. Smith, for the sum of $600 cash.

During this time, Sansom testified he was working for the A. B. & C. Railroad at a salary of $60 or $70 per month and that he started the house with some of the money he had saved. The erection of the house was begun very shortly after the lot was purchased and about two weeks prior to the negotiation of the Sturkie loan.

On cross-examination, Mattie L. Sansom testified that she had nothing to do with the erection of the house on her lot and that its erection was never discussed with her, although it was being erected on her property within sight of the house where she was then living, and she would go to see it after workmen were done with the day's work. That she paid for the Smith lot with $600 she had on deposit in the Etowah Trust & Savings Bank. In reply to this respondent offered D. C. Wadsworth, the President of the American National Bank (successor to...