Weatherwax v. Heflin

• Court: Alabama Supreme Court
• Writing for the Court: THOMAS, Justice.
• Citation: Weatherwax v. Heflin, 244 Ala. 210, 12 So.2d 554 (Ala. 1943)
• Decision Date: 11 February 1943
• Docket Number: 8 Div. 196.
• Parties: WEATHERWAX et al. v. HEFLIN et al.

12 So.2d 554

244 Ala. 210

WEATHERWAX et al. v. HEFLIN et al.

8 Div. 196.

Supreme Court of Alabama

February 11, 1943

Rehearing Denied March 25, 1943.

Appeal from Circuit Court, Lawrence County; A. A. Griffith, Judge. [Copyrighted Material Omitted]

The mortgage and notes referred to in the opinion are as follows:

"State of Alabama, Lawrence County-SS

"Know All Men by These Presents, That we, J. L. Weatherwax and wife Eva Weatherwax for and in consideration that we are indebted to W. I. Heflin in the sum of One Thousand and No/100 with Int. @ 8% from date Dollars, which is evidenced by our promissory note, bearing even date with this instrument, and payable to the said W. I. Heflin, as follows:

"One note of even date with this conveyance bearing interest at the rate of 8% maturing on the 12 day of February 1927 for the sum of One Thousand and No/100 Dollars, and for the purpose of securing the payment of the same, do grant bargain, sell and convey to said W. I. Heflin, the following-described real estate and personal property-to wit:

"Lot #5 in the original plan or plat of the town of Moulton, Ala said lot being bounded on the East by lot #8, on the South by Lot #6, on the west Big Nance Street and on the North by North Street, also the South half of Lot #8, said parcel being bounded on the East by Market Street, on the South by old M. E. Church lot now owned by R. M. Byars, on the west by Lot #5 and on the North by lot now owned by Lybbia Berryhill together with all appurtenances and improvements thereto belonging. It is further understood and agreed that the Mortgagor is to keep all insurable buildings now or to be erected insured in a reliable insurance company against fire with loss clause payable to Mortgagee, and to keep all premiums paid up, in event same is not done, then the Mortgagee is hereby authorized to do same and charge said premiums against this indebtedness.

"Situated, lying and being in Lawrence County, Alabama.

"To Have and To Hold to the said W. I. Heflin his heirs and assigns, forever. Upon condition, however, that if we pay the amount due upon said note above described when the same falls due, then this conveyance to be void; but if we fail to pay said note, in part or in full, then the said W. I. Heflin hereby authorized to declare the whole of said debt due, and, after giving 10 notice of the time and place of sale, by posting notices at three public places in said County, to sell said property to the highest bidder, for cash, at Moulton, Ala. and execute titles to the purchaser, and to devote the proceeds of sale to the payment-first, of the expense of recording this Mortgage, advertising, selling, and conveying; second, of the amount, with interest, that may be due on said note-; and, lastly, if there be any surplus of said proceeds, the same to be returned to the undersigned.

"And it is agreed that the mortgagee or assignee may become the purchaser as such sale. It is further agreed that any irregularity in giving the notice or in making the sale shall not in any manner affect the sale.

"Witness our hands and seals, this 12 day of February, 1926.

"Attest: .... J. L. Weatherwax (L.S.)

".... Eva Weatherwax (L.S.)"

"The State of Alabama, Lawrence County.

"I, L. W. Gentry, a Notary Public in and for said County, do hereby certify that J. L. Weatherwax and wife Eva Weatherwax, whose names are signed to the foregoing conveyance, and who are known to me, acknowledged before me this day that, being informed of the contents of the conveyance, they executed the same voluntarily on the day the same bears date.

"Given under my hand, this 12th day of February, 1926.

"L. W. Gentry

"Notary Public."

"The State of Alabama, Lawrence County.

"I, L. W. Gentry, a Notary Public in and for said County, hereby certify that on the 12th day of February, 1926, came before me the within-named Eva Weatherwax, known (or made known to me to be the wife of the within-named J. L. Weatherwax, who, being examined separate and apart from her husband touching her signature to the within conveyance, acknowledged that she signed the same of her own free will and accord, and without fear, constraint, or threats on the part of her husband.

"In witness whereof, I hereunto set my hand, this 12th day of February, 1926.

"L. W. Gentry

"Notary Public."

"No...... Due ......, 192... $1,000.00

"On the 12th day of February, 1926, We promise to pay W. I. Heflin or order, the sum of One thousand and no/100 Dollars with 8% interest from date for value received. Negotiable and payable at the Citizens Bank, Moulton, Alabama. The right of exemption is hereby waived by the makers, endorsers and transferees of this obligation, as to all personal property, wages and salaries, as provided in the Constitution and laws of the State of Alabama, or any State in the United States; and it is further agreed that the makers, endorsers, or transferees, or either, shall pay all costs of collection, including a reasonable attorney's fee, if not paid at maturity.

"Payment secured with Real Estate Mortgage.

"Given under our hands and seals this 12th day of February, 1926.

"Witness:.... J. L. Weatherwax (Seal)

"............ Eva Weatherwax (Seal)

"By Int for 1926 $80.00

"Without recourse on me I hereby the within to

"Evie Heflin and Josephine Heflin.

"This the 12/9/1927.

"A. J. Wade, Admr."

"No...... Date......, 192... $125.00

"On demand, we promise to pay W. I. Heflin or order, the sum of One hundred twenty-five and no/100 Dollars with 8% interest from date for value received. Negotiable and payable at The Citizens Bank, Moulton, Alabama. The right of exemption is hereby waived by the makers, endorsers and transferees of this obligation, as to all personal property, wages and salaries, as provided in the Constitution and laws of the State of Alabama, or any State in the United States; and it is further agreed that the makers, endorsers, or transferees or either, shall pay all costs of collection, including a reasonable attorney's fee, if not paid at maturity.

"Payment secured with mortgage on Real Estate.

"Given under our hands and seal this 4 day of May, 1926.

"Witness:.... J. L. Weatherwax (Seal)

"............ Eva Weatherwax (Seal)

"By Int for 1926 $10.00

"Without recourse on me I hereby the within to Evie Heflin

"and Josephine Heflin.

"This the 12/9/1927.

"A. J. Wade Admr."

"No...... Due......, 192... $375.00

"On the 11 day of May, 1928, We promise to pay A. J. Wade, Admr. or order, the sum of Three Hundred seventy-five Dollars with 8% int from date for value received. Negotiable and payable at The Citizens Bank, Moulton, Alabama. The right of exemption is hereby waived by the makers, endorsers and transferees of this obligation, as to all personal property, wages and salaries, as provided in the Constitution and laws of the State of Alabama, or any State in the United States; and it is further agreed that the makers, endorsers, or transferees, or either, shall pay all costs of collection, including a reasonable attorney's fee, if not paid at maturity.

"Payment secured with Mtg on House and lot in Moulton, Ala.

"Given under our hands and seals this 11 day of May, 1927.

"Witness:.... J. L. Weatherwax (Seal)

"............ Eva Weatherwax (Seal)

"Without recourse on me I hereby transfer the within to Evie Heflin and Josephine Heflin

"This the 12/9/1927

"A. J. Wade Admr."

The claim of exemption is as follows:

"State of Alabama,

"Lawrence County.

"Before me, E. E. Byars, Clerk of the Circuit Court of Lawrence County, Alabama, this day personally appeared J. L. Weatherwax and Eva Weatherwax who, being by me first duly sworn, depose and say:

"That they are bona fide resident citizen of Lawrence County, Alabama, and that they hereby make known and declare under oath that they have selected and claimed as exempt to them, and to each of them, separately and severally, under the Constitution and Laws of the State of Alabama, the following described real estate, to-wit:

"Lot #5 in the original plan or plat of the town of Moulton, Ala. said lot being bounded on the East by lot #8, on the South by Lot #6, on the west by Big Nance Street and on the North by North Street, also the South half of Lot #8, said parcel being bounded on the East by Market Street, on the South by old M. E. Church lot now owned by R. M. Byars, on the west by Lot #5 and on the North by lot now owned by Lybbia Berryhill together with all appurtenances and improvements thereto belonging.

"J. L. Weatherwax

"Eva Weatherwax

"Sworn to and subscribed before me this the 5th day of February, 1942.

"E. E. Byars

"Clerk."

The following is the correspondence referred to in the opinion:

"2/1/1937

"Mr. Marshall Dugger, Cashier,

"First National Bank,

"Tuscumbia, Ala.

"Dear Mr. Dugger:

"Mr. J. L. Weatherwax of Moulton wants to obtain a Federal Housing Administration loan on his dwelling for the purpose of retiring an outstanding mortgage indebtedness of the same. This house was erected eleven years ago, with certain additions added to it recently. We would like for you to advise whether your Bank will make loans at present on old construction houses under this feature on the F. H. A. We enclose herewith photographs of the dwelling and adjoining property for your inspection. This dwelling is now in good repair.

"Thanking you for your information on this matter, we are

"Yours very truly,

"Perdue & Miller."

"The First National Bank in Tuscumbia

"Tuscumbia Ala.

"February 8, 1937.

"Perdue & Miller,

"Moulton, Ala.

"Gentlemen:-

"We have your letter of February 1st, regarding a proposed loan for Mr. J. L. Weatherwax of Moulton. You state that he wishes this...