Vinegar Bend Lumber Co. v. Leftwich

• Decision Date: 06 July 1916
• Docket Number: 1 Div. 939
• Citation: 72 So. 538,197 Ala. 352
• Parties: VINEGAR BEND LUMBER CO. v. LEFTWICH.
• Court: Alabama Supreme Court

72 So. 538

197 Ala. 352

VINEGAR BEND LUMBER CO. v. LEFTWICH.

1 Div. 939

Supreme Court of Alabama

July 6, 1916

Appeal from Chancery Court, Mobile County; Thomas H. Smith Chancellor.

Suit by Annie R. Leftwich against the Vinegar Bend Lumber Company. Decree for complainant, and respondent appeals. Affirmed.

R.H. &amp R.M. Smith, of Mobile, for appellant.

Webb McAlpine & Grove, of Mobile, for appellee.

THOMAS J.

This is a suit to cancel a mortgage, of date July 2, 1913, made by complainant, Annie R. Leftwich, and her husband, George A Leftwich, to respondent, the Vinegar Bend Lumber Company, a corporation, on the ground that by reason thereof the plaintiff became surety for the husband's debt. The averments of the bill are that on or before the 28th day of June, 1913, complainant was in the possession of, and owned in her individual right, the lands in question; that on said date her husband was largely indebted to the respondent corporation, and desired to furnish it security; that "the authorized officer or officers of respondent, to wit, the president and manager thereof, knew that security could not be given the said corporation by the said George A. Leftwich unless the same could be accomplished by the means hereinabove recited, and that said officer or officers, knowing that a mortgage executed by oratrix and her said husband upon the separate property of oratrix, for the purpose of securing said debt, would be void, suggested to the said George A. Leftwich that he have oratrix first deed the property to him, and then join with him in executing a mortgage, as hereinbefore shown; or, if the said officer or officers did not make such suggestion, they did know that oratrix was the wife of the said George A. Leftwich, and that the plan to have oratrix become indirectly the surety for the said debt of her husband was to be accomplished, and was accomplished, in the manner hereinbefore shown." It is further averred that on the 24th day of November, 1913, the said George A. Leftwich executed and delivered to the complainant a deed, reconveying said property to the complainant. The prayer of the bill is that said mortgage held by the Vinegar Bend Lumber Company be declared null and void, and its cancellation decreed. On final submission said mortgage was held to be in substance and effect a mortgage on the wife's property as security for her husband's debt, and to be void as contrary to the provisions of section 4497 of the Code; and its cancellation and annulment was accordingly decreed.

The question here presented is different in form from that in which it was heretofore passed upon by this court. It is settled by recent decisions that when a wife borrows money from her husband's creditor and hands it back in payment of her husband's debt, thereby becoming nominally the principal debtor upon a new obligation, she thereby becomes, though by indirection, within the meaning of the statute, surety for her husband's debt. Hall v. Gordon, 189 Ala. 301, 66 So. 493; Elkins v. Bank of Henry, 180 Ala. 18, 60 So. 96; Lamkin v. Lovell, 176 Ala. 334, 58 So. 258; Staples v. City Bank & Trust Co., 70 So. 115. In the latter case Mr. Justice Somerville pertinently stated as the rule that:

"If the debt sought to be enforced against the wife, or any part of it, was infected with this vice in its inception, the infection remains, regardless of renewals or changes of form. And so, with respect to the method by which the proceeds of the loan are returned to the hands of the lender, it is of no consequence whether the payment of the husband's debt is open and direct, or

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