Thomas v. Thomas

• Decision Date: 15 June 1944
• Docket Number: 6 Div. 184.
• Citation: 18 So.2d 544,245 Ala. 607
• Parties: THOMAS v. THOMAS.
• Court: Alabama Supreme Court

18 So.2d 544

245 Ala. 607

THOMAS v. THOMAS.

6 Div. 184.

Supreme Court of Alabama

June 15, 1944

D G. Ewing, of Birmingham, and F. F. Windham, of Tuscaloosa for appellant.

J F. Livingston, of Tuscaloosa, for appellee.

THOMAS Justice.

There was a consolidation of pending causes to foreclose mortgages on lands and to cancel the same as a cloud on the title.

The two cases were heard as one before the trial court rendering judgment, and aside from the exhibits in question, were by oral testimony. To such hearing the usual presumptions obtain in favor of the findings of the trial court. Ray v. Ray Ala.Sup., 18 So.2d 273; Randolph v. Randolph, Ala.Sup., 18 So.2d 555.

The first mortgage of date of April 22, 1937, was by the son to the mother and at a time when mortgagor was divorced from his first wife Hattie. There can be no question but that this mortgage was a valid lien on the property in question.

The second mortgage was between the same parties of date of May 17, 1937. There is no tendency of evidence to the effect that the mortgagor or his divorced wife Hattie had remarried. The holding of the lower court was to the effect that it was a valid and binding conveyance on the property embraced therein.

The third and fourth mortgages between the son and mother (same parties) were of respective dates of July 3rd and September 16th, 1937. There was no evidence of a valid ceremonial marriage of the mortgagor after his divorce from Hattie as affecting these two conveyances. However, there is a tendency of evidence that at such time he was living with the appellant Mary in the house situated on lot number sixteen.

There is a tendency of evidence, which is denied, by appellee and other witnesses acquainted with the parties that tends to refute the fact of any common-law marriage of mortgagor with Mary at such times. The trial court held these mortgages void as being given on a part of the homestead of the said mortgagor William Thomas and the wife Mary Thomas not joining in the execution of same as required by statute. Code 1923, § 7883, Code 1940, Tit. 7, § 626, General Acts 1931, p. 183; Lazenby v. Lazenby, 229 Ala. 426, 157 So. 670.

The evidence is without dispute that said mortgagor left Alabama in the fall of 1937 for Kentucky where he remained until his death on July 10, 1941. When he left Alabama he vacated three of the rooms in the homestead and left his furniture in the fourth room. The evidence shows that he came back to Alabama on April 5, 1941, obtained a loan of $150 from his mother and gave her a mortgage on the whole property. This fact was corroborated by an official of the bank, saying that the mortgagee withdrew from her savings account such sum on the day of an acknowledgment of said mortgage by William Thomas. No wife joined in the execution of this mortgage.

The agreement of counsel shows that there had been no divorce proceedings instituted in the Circuit Court of Tuscaloosa County, In Equity, or any "divorce proceedings between Mary Thomas and William Thomas by either of such parties against the other."

On the cross examination of appellant Mary Thomas she was asked if it was not a fact that she and William got a marriage certificate in Harlan, Kentucky, on the 14th day of January, 1941, and gave Coxton, Kentucky, as residence, and thereafter had a marriage ceremony performed. To this question she answered, "It was just a fake. We had to make to show to those camps up there. If you ain't got a marriage certificate you can't stay there." And the witness then admitted that after having such certificate they went through a marriage ceremony. The certified copy of the marriage record of Kentucky was introduced in evidence and it showed that said parties did secure a marriage certificate on January 14th, 1941, and that on the 14th day of January, 1941, they did go through a marriage ceremony and gave their address as Coxton, Kentucky.

The register of marriages from Kentucky in evidence gave the ages of the respective parties; that they were both divorced; that their place of birth was Tuscaloosa, Alabama; their residence Coxton, Kentucky; gave the names of their respective parents; gave the occupation of the husband as a "miner"; and stated the date of the license as the 14th day of January, 1941. That record also contained the further words: "This license is void thirty days after date." The date entered by the clerk was the 14th day of January, 1941. The marriage certificate is to the effect that on January 14, 1941, at Harlan, Ky., under authority of the above license that one J. B. M. Howard, J. P. H. C., "united in marriage William Thomas and Mary Foster," the persons named and described and that the ceremony was performed in the presence of Lige Blanton and Robert Hall.

Thus we are brought to the consideration of the validity of the last indicated mortgage touching the homestead (if such it was) of the party named in Alabama. Said mortgage is of the date of April 5th, 1941.

In comparing the two mortgages, appellant said that the signature on the older mortgage was genuine and the signature on the last mortgage was a forgery of the husband's name. However, the trial court seeing and hearing the evidence had the advantage enjoyed by an inspection of the two mortgages and the comparison of the two signatures thereon, which is not available to this court. The last mortgage was executed on April 5, 1941, as indicated, by William Thomas to appellee for the sum of $150. This transaction in Alabama is supported by the testimony of appellee and the officers taking the acknowledgment and by Mr. Baker, the bank official, showing the withdrawal on that date from Martha's savings account of the like sum indicated in the mortgage. Appellant's testimony was to the effect that her husband was not in Alabama after...