Thomas v. Davis, 4 Div. 196.

• Decision Date: 22 May 1941
• Docket Number: 4 Div. 196.
• Citation: 2 So.2d 616,241 Ala. 271
• Parties: THOMAS et al. v. DAVIS et al.
• Court: Alabama Supreme Court

2 So.2d 616

241 Ala. 271

THOMAS et al. v. DAVIS et al.

4 Div. 196.

Supreme Court of Alabama

May 22, 1941

M. B. Grace, of Birmingham, for appellants.

H. A. Ferrell, of Seale, for appellees.

THOMAS Justice.

The prayer of the amended bill was for cancellation of certain conveyances and for an accounting.

Eli Jackson, Sr., who was about ninety-five years of age at the time of his certain conveyances, lived about six miles from Hurtsboro, and owned a tract of land containing about 123 1/2 acres. He died in the year 1930, leaving four children: Lila Andrews, a daughter, who lives in Birmingham, Alabama; a son Nem Jackson, now dead, who lived in Cincinnati, Ohio; a son Eli Jackson, Jr.; and a daughter, Fannie Thomas, who lived with him on the property near Hurtsboro.

Fannie Thomas was the wife of Will Thomas. Prior to the year 1928 it is alleged in the amended bill, the Bank of Hurtsboro sold to Will Thomas certain live stock, mules and horses, which had died. Will Thomas was a tenant farmer, working most of the time for one of the officers of the Bank of Hurtsboro and on the place of said officer. The Bank of Hurtsboro is a banking institution, located at Hurtsboro, Ala. T. S. Davis and W. T. Davis were officers of the bank.

On February 20, 1928, an officer of the bank prepared a deed to be executed by Eli Jackson, Sr., conveying forty acres of his land to his son Eli Jackson, Jr. Two days later, on February 22, 1928, another deed in like respects was prepared by the bank's official, to be executed by the old man, conveying the remainder of his land, eighty-three and one-half acres to his daughter Fannie Thomas, who lived with him. These deeds were acknowledged by the same notary public. Eli Jackson executed both deeds by signing his name to it by his cross mark. The notary public executed the certificate of acknowledgment and signed as a witness to the signature of the grantor. Both deeds were recorded in the office of the judge of probate. This disposed of all the land the grantor owned to the two children in question, the one living with him, and the other paying off his large indebtedness.

Subsequent to the execution of the deed conveying the land to the daughter (on the 5th day of March, 1932), the officers of the bank prepared a mortgage to be executed by Fannie Thomas and her husband, Will Thomas, conveying the land to the Bank of Hurtsboro, as security for an indebtedness owing to the bank by Will Thomas and Will Thomas carried his wife to the bank for the purpose of executing the mortgage. It is alleged that she objected to executing the mortgage with her land pledged as security on the indebtedness of Will Thomas to the bank, but she was prevailed upon to execute the same and signed her name by her cross mark. The mortgage secured an indebtedness of $466 and was represented by their promissory note payable to the bank and due October 1, 1932. Three parties were present at the time it was executed, W. T. Davis, Will Thomas and his wife Fannie Thomas. A mule, cow, yearling and the eighty-three acres of land were included in the mortgage as security. The mule belonged to Will Thomas and the cow and yearling to his wife.

The signature to the mortgage and certificate of acknowledgment is as follows:

"The State of Alabama,

"Russell County.

"I ------- in and for said County, in said State, hereby certify that ------- whose name ------- signed to the foregoing conveyance, and who ------- known to me, acknowledged before me on this day that, being informed of the contents of the conveyance, -he- executed the same voluntarily on the day the same bears date.

"Given under my hand this _______ day of ------- A. D. 19-

"Claude P. Glass N.P.

"N.P.

"(Seal)

"The State of Alabama

"Russell County.

"I, ------- in and for said County and State, do hereby certify that on the ------- day of ------- 19-, came before me the within named ------- known to me to be the wife of the within named -------, who, being by me examined separate and apart from the husband touching her signature to the foregoing conveyance, acknowledged that she signed the same of her own free will and accord, and without fear, constraint, or threats on the part of the husband.

"In Witness Whereof, I hereunto set my hand this ------- day of -------, 19-.

"Claude P. Glass, N.P.

"(Seal)"

Default was made in the payment of the indebtedness secured by the mortgage and on January 24, 1933, the mortgage was sought to be foreclosed under the power contained in it and the Bank of Hurtsboro purchased the property at foreclosure sale. Foreclosure deed was duly executed to the bank, filed in the office of the judge of probate for record on January 25, 1933, and recorded in Vol. 162, p. 550, Records of Deeds. The bank's attorney acted as attorney for it and as auctioneer and handled the foreclosure proceedings. The evidence is to the effect that the original mortgage was turned over to him and it has been misplaced. The foreclosure deed conveys the land pledged as security, but no mention is made of the personal property which was also pledged as security.

The bank kept the property for about one year and transferred it to a trustee for Mr. Davis and wife. C. D. Cade as such trustee conveyed the property to W. T. Davis and wife, Annie P. Davis. Mr. Davis was cashier of the Bank of Hurtsboro and the party who procured the execution of the deeds by Eli Jackson, Sr., to the latter's son and daughter, and was one of the parties present when the mortgage was executed by Fannie Thomas and her husband Will Thomas to the bank.

By amendment of the bill of complaint, Fannie Thomas raised questions of the validity of the mortgage executed March 5, 1932, on several grounds: (a) that it was executed as security for the debt of her husband, (b) that it was void because there were no certificates of acknowledgment to the mortgage, (c) that the mortgage was executed by the mortgagors executing it by their marks and their signatures to the mortgage were attested by only one witness, and (d) that the property mortgaged as security was a homestead and neither of the mortgagors appeared before the notary public and acknowledged the execution of the same, and (e) that the notary public did not duly take the acknowledgments required by statute from grantors in the mortgaging of a homestead.

In the year 1932, the same year, the mortgage was executed and foreclosed, Fannie Thomas and her husband Will Thomas cultivated and raised two and one-half bales of cotton on the land conveyed as security, each bale weighing more than 500 pounds, and turned them over to the bank, also the seed therefrom and some corn. The cotton was shown to have been worth from 13 1/2 to 15 cents per pound, and the fifty bushels of corn was worth 50 cents per bushel.

Will Thomas and Fannie Thomas did not know the mortgage had been foreclosed and the bank allowed them to remain on the property and raise a crop in the year 1933. That year they raised two bales and a remnant of a bale of cotton, which was turned over to the bank, together with the seed out of the cotton. That fall, after the bank had received the cotton and cotton seed and corn, it dispossessed the parties and took one mule, one cow and yearling also pledged as security.

In the year 1933 the bank went through a form of liquidation, the stock of the stockholders was sold and new officers of the bank elected, but the corporation was not changed. Mrs. Annie P. Davis, one of the respondents, claimed that the indebtedness secured by the mortgage executed March 5, 1932, was the indebtedness of Fannie Thomas. She testified that the permanent books and records of the bank would show the account in the name of Fannie Thomas, that they were stored in an outhouse and the rain had ruined them, and for that reason, she said that she could not bring the books into court. Fannie Thomas denied having owed the Bank of Hurtsboro, but said her husband Will Thomas had dealt with the bank and made arrangements with that institution or officers for her to get $7 per month for five or six months during crop season; and that her husband Will Thomas was working for one of the Davises.

Testimony was taken before the Register. The court rendered a decree in favor of the respondents and against the complainants, and held among other things, the two deeds executed by Eli Jackson, Sr., conveying his land to Eli Jackson, Jr., and Fannie Thomas were valid; that Fannie Thomas did not come into court with clean hands and that the mortgage executed by Fannie Thomas and Will Thomas to the Bank of Hurtsboro dated March, 1932, was not void as being given as security for the debt of her husband and the foreclosure deed was valid. The court ruled on the validity of the deeds and mortgage executed March 5, 1932, to the Bank of Hurtsboro, saying: "It is further ordered, adjudged and decreed that the two conveyances from Eli Jackson, Sr., to his son and daughter, respectively, are hereby declared to be valid in all respects; that the mortgage to the Bank of Hurtsboro, founded on one of said conveyances, and its subsequent foreclosure and the deed executed as the result of said foreclosure sale, be and the same are hereby declared to be valid and binding in all respects as it is ascertained by the Court that the maker of said deeds, the said Eli Jackson, Sr., had sufficient mental capacity to make and execute the same."

The mortgage of March 5, 1932, was void for the reasons that it had no certificates of acknowledgment, was executed by grantors' marks and was not attested by two witnesses as required by law. Code of 1923, §§ 6838, 6840, 6845, Code 1940, Tit. 47, §§ 22, 24, 30; Henderson v. Kirkland et al., 127 Ala. 185, 28 So. 674; Russell v Holman, 156...