Stroup v. International Life Ins. Co.

• Decision Date: 22 November 1928
• Docket Number: 8 Div. 983
• Citation: 218 Ala. 382,118 So. 752
• Parties: STROUP v. INTERNATIONAL LIFE INS. CO. et al.
• Court: Alabama Supreme Court

118 So. 752

218 Ala. 382

STROUP v. INTERNATIONAL LIFE INS. CO. et al.

8 Div. 983

Supreme Court of Alabama

November 22, 1928

Appeal from Circuit Court, Lawrence County; James E. Horton, Judge.

Bill in equity by Clayton Stroup against the International Life Insurance Company and T.S. Stroup to remove cloud on title to real estate. From a decree dismissing the bill, complainant appeals. Affirmed.

Almon &amp Almon, of Decatur, for appellant.

Eyster & Eyster, of Decatur, for appellees.

BROWN J.

The bill was filed by the appellant against her husband and the appellee the International Life Insurance Company to cancel a mortgage and a deed made in pursuance of its foreclosure executed by the complainant and her husband to the Gulf Coast Life Insurance Company, covering 54 acres of land, 50 acres of which were owned by the complainant and 4 acres by her husband, as a cloud on the complainant's title. The ground upon which the bill seeks relief is that the mortgage was given to secure the debt of the husband, and that the complainant, within the contemplation of the statute, was merely his surety. Code of 1923, § 8272.

The evidence shows that some years prior to the execution of the mortgage in question the husband borrowed money from one Orr which was used in part in building a house, barn, and other outbuildings on the four acres of land belonging to the husband, and that the complainant and her husband executed a mortgage on the lands in question to secure the payment of this debt. Thereafter, on the suggestion of Orr, and with his assistance in arranging the loan, the husband borrowed money from one Robinson to pay Orr, and complainant and the husband executed a mortgage on the property to secure Robinson. The evidence further shows that the husband became indebted to Dr. Lovelady for money borrowed to purchase mules to be used in farming operations on the land in question and other lands, and that a like mortgage was given by the complainant and her husband to secure this debt. Other debts were contracted by the husband for supplies used in his farming operation and for attorney's fees to clear up and quiet title to complainant's land.

The money to secure the payment, of which the mortgage in question was given, was borrowed from the Gulf Coast Life Insurance Company to pay the indebtedness of the husband to Lovelady and Robinson, who were pressing payment and threatening to foreclose, and in part applied to the payment of these debts, the balance being used to pay the premiums on a life insurance policy issued to the complainant's husband, but payable to her and assigned by her to the company as additional security for the loan, leaving a small balance which was used to pay on the other debts of the husband.

The evidence further shows that Tilden Stroup, the husband, first made written application to the life insurance company for the loan, but the respondent insurance company for the loan but the respondent insurance company offered evidence going to show that this application was accepted on the assumption that the title to all of the property was in him, and afterwards the agent of the company learned that the...