Sheldon v. Carter

• Court: Alabama Supreme Court
• Writing for the Court: STONE, C.J.
• Citation: Sheldon v. Carter, 90 Ala. 380, 8 So. 63 (Ala. 1890)
• Decision Date: 18 June 1890
• Parties: SHELDON ET AL. v. CARTER.

8 So. 63

90 Ala. 380

SHELDON ET AL. v. CARTER.

Supreme Court of Alabama

June 18, 1890

Appeal from chancery court, Jefferson county; THOMAS COBBS Chancellor.

The bill in this case was filed by the appellee against the appellants, and sought to foreclose a mortgage averred to have been given by the defendants to secure the payment of purchase money for certain lands described in the bill alleged to have been purchased from the complainant. The defendants demurred to the bill on the grounds that the mortgage did not contain the names of the defendants in the granting clause of the mortgage; that the contract of purchase and sale was made by a married woman, without the assent or concurrence of the husband expressed in writing and that the said Esther Sheldon was not capable of entering into such a contract. The defendant also moved to dismiss the bill for want of equity. Upon the hearing of the demurrers and motion to dismiss, the chancellor overruled both the demurrers and the motion to dismiss. The facts as disclosed by the bill are, substantially, as follows; Carter sold Esther Sheldon a lot, and gave her his bond for title, she paying him $500 in cash, and giving him her note for $1,000 the balance due. Afterwards, by agreement, Carter conveyed this same lot to Esther Sheldon, and she and her husband executed to him their promissory note under seal for the $1,000 still due, and, to secure this note, she and her husband mortgaged this same lot to Carter, and recited in the mortgage that it was made "for and in consideration of a certain deed of land given, and my promissory note for part price thereof." Default having been made in the payment of said note, and the law-day of the mortgage having passed, Carter now files his bill to foreclose the mortgage, and to sell the lot. In their answer, the defendants set up that the complainant conveyed to them a different lot from the one described in the bond for title, denied the validity of the transaction, and, also, asked that their answer be taken as a cross-bill, and that the transaction be declared null and void. On final hearing, upon the pleadings and proof, the chancellor decreed that the complainant was entitled to the relief prayed for; and that complainants in the cross-bill were not entitled to the relief therein prayed. This decree is now appealed from by the defendants, and they assign the same as error.

Tipton Bradford, for appellants.

Ward & John, for appellee.

STONE C.J.

We have several decisions which hold that when a deed of conveyance is subscribed by more names than one, and some of the subscribers' names are not shown in the body or granting cause, such instrument is not the deed of those whose names are omitted from the granting clause and shown only in the signatures. Harrison v. Simons, 55 Ala. 510; Hammond v. Thompson, 56 Ala. 589; Blythe v Dargin, 68 Ala. 370; Fite v. Kennemer, 7 South. Rep. 920; Bank v. Rice, 4 How. 225. In each of these cases, one or more names were expressed in the body of the deed as uniting in the grant, and those, and one or more additional names, were subscribed at the foot of the deed. It has been uniformly ruled that a conveyance thus executed is the deed of only those expressed in the body of the instrument, for they alone grant, bargain, sell, and convey. Such is the natural interpretation of the language. When an instrument expresses in terms that it is a conveyance by A. and B., we would do great violence to its obvious intent if we were to hold that C. also conveyed, merely because his name appears as one of the signers. Expressum facit, cessare tacitum. The instrument we are required to interpret in this case is a mortgage. The subscribers to the instrument are Esther Sheldon and John Y. Sheldon. Neither their names nor any other name is expressed in the body of the conveyance as a grantor. It recites "thatfor and in consideration of a certain deed of land given, and my promissory note for part price thereof, indebtedness to Gilbert...