Stodenmeyer v. Hart

• Citation: 155 Ala. 243,46 So. 488
• Parties: STODENMEYER v. HART.
• Decision Date: 16 April 1908
• Court: Supreme Court of Alabama

46 So. 488

155 Ala. 243

STODENMEYER v. HART.

Supreme Court of Alabama

April 16, 1908

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Action by Sidney Hart against Amelia Stodenmeyer. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

John W Chamblee, for appellant.

Kerr &amp Haley, for appellee.

DOWDELL J.

This is a statutory action of ejectment. The plaintiff relied for title and right of recovery of the land sued for on a mortgage executed to the plaintiff by the defendant and a purported deed executed by the plaintiff to himself under foreclosure proceedings had under powers given in the mortgage. If it be conceded that the deed executed under the foreclosure proceedings was invalid and insufficient under the powers contained in the mortgage to convey title, yet, if the mortgage was paid, it (the mortgage) conveyed the legal title into the plaintiff, and this was sufficient to make a prima facie case against defendant, and to authorize a recovery. This being so, the admission in evidence against the objection of the defendant of what purported to be a deed under foreclosure proceedings was error without injury.

As a defense the defendant set up that she was a married woman at the date of the execution of the mortgage by her, and that her husband did not give his assent in writing to its execution as required by the statute, and for that reason the mortgage was void. This is the main issue in the case, and evidence tending to prove or disprove the fact of the defendant's marriage at the time of the making of the mortgage was relevant. There was no evidence of a marriage under a license issued for that purpose, but the defendant sought to prove marriage by long and continuous cohabitation with one Jerry Henry; they recognizing each other as husband and wife and so holding themselves out to the public. A letter written to the defendant in 1895, long prior to the date of the mortgage, by the said Jerry Henry, and addressed to her as his wife, and signed by him as her husband, and received by the defendant, was, as a circumstance tending to support the theory of marriage, relevant and competent to go to the jury.

The defendant as a witness in her own behalf having testified that she gave in her property to the tax assessor for assessment for taxes, but that she did not remember whether she gave it in in the name of Amelia Henry or Amelia Stodenmeyer, the...