Walker v. Baker

• Decision Date: 08 February 1917
• Docket Number: 3 Div. 275
• Parties: WALKER, Superintendent of Banks, et al. v. BAKER.
• Court: Alabama Supreme Court

74 So. 368

199 Ala. 310

WALKER, Superintendent of Banks, et al. v. BAKER.

3 Div. 275

Supreme Court of Alabama

February 8, 1917

Appeal from Chancery Court, Escambia County; Oscar S. Lewis Chancellor.

Suit by J.W. Baker against A.E. Walker, as Superintendent of Banks and another. Decree for complainant, and defendant Walker appeals. Affirmed.

Bill by appellee against A.E. Walker, as superintendent of banks, and the People's Bank & Trust Company of Atmore, Ala seeking to have canceled as a cloud on title a mortgage and foreclosure deed executed by complainant and his wife to the said bank and trust company. The bill shows that on January 12, 1914, complainant owned and occupied as a homestead the real estate in the town of Atmore described in the bill, and that he is still in possession of said property as his home that on the above-named date he and his wife, Rebecca Baker, made a mortgage to the Peoples' Bank & Trust Company (a copy of which is made an exhibit to the bill), and that the acknowledgment to same was taken by one Lamont, a notary public in Escambia county, who was an officer and stockholder in said bank, which fact it is alleged makes the mortgage illegal and void. It is further alleged that at the time of the execution of the mortgage no money was advanced by said bank to complainant, but the mortgage was to secure a past-due indebtedness in the sum of $600. The bill then shows the insolvency of said banking company, alleging that its affairs had been transferred to the superintendent of banks, and are now in course of liquidation in all respects as provided by law, and that said superintendent foreclosed the mortgage under the power of sale therein contained, advertised the property for sale, bid it in himself for the state, and had deed executed to him as state superintendent of Banks. The demurrer to the bill takes the point that there is no equity in the bill, and that complainant does not offer to do equity by repaying the amount of said indebtedness. The demurrer was overruled, and from this decree the appeal is prosecuted; leave of the chancellor having been obtained by the superintendent of banks to prosecute this appeal.

Powell & Hamilton, of Greenville, and John D. Leigh, of Brewton, for appellee.

GARDNER J.

The bill in this case shows that the separate acknowledgment of the wife to the mortgage sought to be canceled as a cloud on title was taken by one who was an...