Tennessee Coal, Iron & R. Co. v. Wheeler

• Decision Date: 18 April 1900
• Parties: TENNESSEE COAL, IRON & RAILROAD CO. v. WHEELER.
• Court: Alabama Supreme Court

28 So. 38

125 Ala. 538

TENNESSEE COAL, IRON & RAILROAD CO. v. WHEELER.

Supreme Court of Alabama

April 18, 1900

Appeal from city court of Birmingham, William W. Wilkerson Judge.

Bill by the Tennessee Coal, Iron & Railroad Company against George F Wheeler. From a decree in favor of the defendant, complainant appeals. Affirmed.

The bill in this case was filed by the appellant, against the appellee, to have a deed absolute on its face executed by H L. Wheeler and his wife, to the respondent, declared a mortgage, and inasmuch as the debt secured by it had been paid, to have said instrument canceled as a cloud upon complainant's title to the property therein conveyed, or to have said deed declared void and inoperative for want of a proper delivery thereof.

The bill averred that in 1892, Adelaide Wheeler, the widow of H L. Wheeler, as the administratrix of the estate of said H. L Wheeler, executed a deed to the complainant, in which she conveyed the minerals and mineral rights to the lands in controversy, which were specifically described in the bill and that said sale was made under a regular order of the probate court. It was then averred that in 1884, H. L. Wheeler and his wife, Adelaide Wheeler, executed a mortgage to the defendant George F. Wheeler, to secure an indebtedness from H. L. Wheeler to the mortgagee; that in this mortgage there were certain lands, other than those involved in this controversy, conveyed; that subsequently, in 1885, the said H. L. Wheeler and his wife executed a deed to the said George F. Wheeler, in which they conveyed the lands which are involved in this suit upon the recited consideration of $800. It was then averred that although said deed recited the payment of $800, there was in fact no consideration paid, and that the deed was executed and intended as a mortgage to further secure the indebtedness of H. L. Wheeler to George F. Wheeler, which was secured by a mortgage executed in 1884, the latter considering such former mortgage insufficient security for said debt.

It was further averred that at the time of the execution of this deed in 1885, the said George F. Wheeler, who was the grantee in said deed, was a resident of Massachusetts, and that he did not know of the execution of the deed until a year or more after it was executed; that upon the deed being signed by H. L. Wheeler and his wife and properly witnessed and probated, it was delivered to the attesting witness with directions, that he should file it in the probate office for registration, and that after being so filed and recorded, it was, after the death of said H. L. Wheeler, found among his papers where it had been put after its registration in the probate office.

It was further averred that said H. L. Wheeler died in 1886, and that the debt which the first mortgage was given to secure, had been paid to the defendant by Adelaide Wheeler, the administratrix of the estate of H. L. Wheeler, deceased.

The prayer of the bill was that said deed be declared to be a mortgage and that the debt intended to be secured thereby having been paid, that the said deed be annulled and set aside and removed as a cloud upon the complainant's title, or that said deed be declared to be void, null and of no effect, by reason of its not having been delivered.

In their answer to the bill, the defendants admitted the execution of the several instruments averred in the bill, but denied that...