Sims v. Hester, 8 Div. 526.
| Decision Date | 01 March 1934 |
| Docket Number | 8 Div. 526. |
| Citation | 228 Ala. 321,153 So. 281 |
| Court | Alabama Supreme Court |
| Parties | SIMS v. HESTER et al. |
Rehearing Denied March 22, 1934.
Appeal from Law and Equity Court, Franklin County; B. H. Sargent Judge.
Bill to cancel mortgage by Nellie J. Sims against A. B. Hester and others, partners, doing business as Hester Bros. & Co., and cross-bill by respondents. From a decree for respondents complainant appeals.
Reversed and rendered.
Wm. L Chenault, of Russellville, for appellant.
Travis Williams, of Russellville, for appellees.
The original bill was filed by appellant to cancel a mortgage executed by her husband, L. N. Sims, and herself, to appellees on January 12, 1932, on the wife's land, to secure an indebtedness contracted in the purchase of a pair of mules, on the ground that the debt was that of the husband.
The appellees denied the allegation of the bill that the debt was that of the husband, and alleged that it was the joint debt of said L. N. Sims and the complainant. The answer was made a cross-bill and prayed for foreclosure of the mortgage.
The testimony was taken on oral examination before the register and reduced to writing, and on submission on pleadings and proof, the court entered a decree denying the relief prayed in the original bill and granting the respondents relief under their cross-bill.
The statute which declares that "the wife shall not, directly or indirectly, become the surety for the husband, * * * is founded upon public policy, which is to protect the wife's estate as against the influence of her husband or other person, or her own inclination, in respect to subjecting it to her husband's debts." Section 8272, Code; Richardson v. Stephens, 122 Ala. 301, 307, 25 So. 39, 41.
"It has been liberally construed and zealously applied by the courts for the accomplishment of its obvious design," and in dealing with transactions to which the statute is applicable, the courts look through the form to the substance of the transaction. Street v. Alexander City Bank, 203 Ala. 97, 98, 82 So. 111, 112; Horton v. Hill, Adm'r, 138 Ala. 625, 36 So. 465.
The question presented by this appeal is one of fact-whether or not the debt secured by the mortgage was that of the husband, alone, or was it the joint obligation of the husband and wife?
After full consideration of the evidence, we are clear to the conclusion that the mules, the purchase price of...
To continue reading
Request your trial
-
Continental Life Ins. Co. of St. Louis, Mo., v. Brandt
...339, 58 So. 258; Hendon v. Hendon, 219 Ala. 159, 160, 121 So. 534; Mitchell v. Sessoms Grocery Co. (Ala. Sup.) 153 So. 282; Sims v. Hester (Ala. Sup.) 153 So. 281; Marbury Lumber Co. v. Woolfolk, 186 Ala. 254, 65 43. It is as much within the inhibition of suretyship to deposit or pledge the......
-
Clark v. Lineville Nat. Bank
... ... 175 CLARK v. LINEVILLE NAT. BANK et al. 7 Div. 365Supreme Court of AlabamaApril 16, 1936 ... Rock et al., 227 Ala. 484, 150 So. 463; Sims v ... Hester et al., 228 Ala. 321, 153 So. 281; Staples ... 39; Alabama Chemical Co. v. Hall, 212 Ala. 8, 101 ... So. 456. Though not presented here, but as ... ...
-
Garland v. First Nat. Bank
... ... 480 GARLAND v. FIRST NAT. BANK OF SCOTTSBORO et al. 8 Div. 562.Supreme Court of AlabamaMarch 1, 1934 ... Hill, Adm'r, 138 Ala. 625, 36 So. 465." Sims ... v. Hester et al. (Ala. Sup.) 153 So. 281 ... ...
-
Hughes v. Gates
...cross bill. Delony v. O'Reilly, 235 Ala. 386, 179 So. 207; Clark v. Lineville National Bank, 232 Ala. 175, 167 So. 550; Sims v. Hester, 228 Ala. 321, 153 So. 281; § 8272, The decree of the Law and Equity Court of Franklin County is reversed and the cause is remanded. Reversed and remanded. ......