Wetherington v. Mason

• Decision Date: 02 March 1889
• Parties: WETHERINGTON ET AL. v. MASON ET UX.
• Court: Alabama Supreme Court

5 So. 679

86 Ala. 345

WETHERINGTON ET AL. v. MASON ET UX.

Supreme Court of Alabama

March 2, 1889

Appeal from chancery court, Conecuh county; JOHN A. FOSTER, Judge.

Wetherington & Co. sued Robert G. Mason and wife to reform a mortgage and for foreclosure. From the decree rendered complainants appeal.

Stallworth & Burnett, for appellants.

CLOPTON J.

On January 5, 1886, appellees, who are husband and wife executed a mortgage on real and personal property to secure a note for $175, made by the husband to appellants, payable on the 1st day of October of the same year. A portion of the personal property and the real estate, which constituted the homestead of the mortgagor, was sold under a power of sale contained in the mortgage. On discovering a mistake in the description of one of the subdivisions of the land, the sale was disregarded, and the bill is filed by appellants to reform the mortgage, and for a foreclosure. The mortgage was executed and acknowledged in conformity with the statutory requirements to constitute a valid alienation of the homestead. The mistake is admitted in the answer, and also proved. In such case, though the subdivision in the description of which the mistake occurs is a part of the homestead, a court of equity will interpose to reform the mortgage, if it is executed by the husband and wife in conformity with the statute, and the reformation does not increase the quantity of land conveyed. Gardner v. Moore, 75 Ala. 394. Having reformed the mortgage, the court will proceed to a foreclosure.

The proceeds of the personal property sold under the power should unquestionably be applied to the mortgage debt. The material question arises on the application of the proceeds of three bales of cotton, which were delivered by the mortgagor to the mortgagees, and sold by them in the fall of 1886. In stating the account on the reference ordered, the register applied the proceeds of the cotton to an open account for advances which were not covered by the mortgage. The chancellor corrected the report of the register, and applied the proceeds in reduction of the mortgage debt. The mortgage included the entire crops made by the mortgagor during 1886. The application made by the register was evidently based on his finding, as matter of fact, that in May of that year an arrangement was made by which the mortgagees agreed to make further advances to the mortgagor, and he agreed, in consideration thereof, that such advances should be paid for out of the first cotton delivered. The preponderance of the evidence sustains the conclusion of the register. The chancellor did not pass on this finding, regarding it, in his view of the case, as immaterial. The question presented for consideration is, can a mortgagor, who is a married man, when the mortgage conveys the homestead and personal property, agree, without the consent of his wife, to apply the personal property to any debt other than the mortgage debt?

The general rule may be conceded that when a mortgage is made by a debtor as security for an existing debt, and it does not contemplate or provide for future advances, moneys realized from the mortgaged property must be applied to the payment of the debt secured thereby. They may, however, be otherwise applied by agreement of the mortgagor, no rights of third persons intervening. Schiffer v. Feagin, 51 Ala. 335; Levystein v. Whitman, 59 Ala. 345. On the assumption that an agreement was made as found by the register, the question is, has Mrs. Mason, the wife of the mortgagor, any legal right in the homestead which will be prejudiced by the appropriation of the cotton to the payment of the future advances, or any equity superior to the equity of the mortgagees to have such appropriation made? Where a mortgage conveys different parcels of the same kind, or different classes of property, the mortgagee may, in the absence of a stipulation to the contrary, elect for his own benefit the particular property to which he will resort in the first instance. In the absence of some peculiar equity, growing out of other circumstances, the mortgagor, or any person claiming under him, cannot compel the mortgagee to exhaust any one of the different parcels or classes of property conveyed by the mortgage to the exclusion of the other.

By the voluntary signature and assent of the wife to a mortgage of the homestead, the waiver of...