Wilson v. Horton

• Decision Date: 23 October 1924
• Docket Number: 3 Div. 651.
• Citation: 101 So. 740,212 Ala. 87
• Parties: WILSON ET AL. v. HORTON.
• Court: Alabama Supreme Court

101 So. 740

212 Ala. 87

WILSON ET AL. v. HORTON.

3 Div. 651.

Supreme Court of Alabama

October 23, 1924

Appeal from Circuit Court, Conecuh County; John D. Leigh, Judge.

Bill in equity by Mrs. S. S. Wilson against W. K. Horton, and cross-bill by Horton against the complainant and others. From the decree complainant and cross-respondents appeal. Affirmed.

Thigpen Murphy & Jones, of Andalusia, for appellants.

Hamilton & Jones, of Evergreen, for appellee.

BOULDIN J.

The bill is filed to declare a deed to real estate to be a mortgage, and to cancel same on two alternate grounds: (1) It was given upon the lands of the wife to secure the husband's debt, and made an absolute deed as a means of evading the statute forbidding the wife to become the surety of the husband. (2) The mortgage debt is fully paid. The bill also prays alternate relief, by way of redemption, in case cancellation is denied.

The answer denies the equity of the bill on all these grounds denies that the lands were owned by the wife; avers that, if deeded to her by her husband, as alleged, the respondent had no notice of her unrecorded deed at the time of taking the deed now assailed; and avers the deed to respondent was given in payment and satisfaction of the husband's debt without right of redemption.

The answer alleges further that respondent's deed was given in payment or as security for accumulated debt, secured by mortgages on the same lands antedating and superior to the deed from husband to wife; that these mortgages were never surrendered nor canceled, and are unsatisfied other than by the execution of the deed attacked by complainant. The answer is made a cross-bill, to foreclose the mortgage, if the deed is so declared, and brings forward the prior mortgages praying that all be foreclosed for the collection of the debt of the cross-complainant. J. E. Wilson, the debtor husband having died, his heirs at law are made parties respondent to the cross-bill with S. S. Wilson, the complainant in the original bill.

On final hearing the court decreed respondent's deed to be a mortgage, and complainant entitled to relief by redemption. The court further decreed that the mortgage debt was wholly unpaid, and foreclosed the mortgage liens of cross-complainant for debt and attorney's fees. This appeal is by cross-respondents to review the foreclosure decree.

The real question here presented in argument is one of fact on the issue of payment, vel non, of the mortgage debt. Appellee first suggests this question cannot be reviewed because of omission of certain testimony from the record. The rule in this regard is: Where the record or the certificate of the clerk shows evidence omitted bearing upon the issue of fact we are called upon to review, or the nature of the omitted evidence does not appear, this court cannot review the findings of fact in the court below. While this court is directed by statute to indulge no presumption in favor of findings on evidence taken by deposition, we cannot presume error. It follows that we must have the evidence on which the court below acted, or we cannot disturb his finding.

If, however, it affirmatively appears the omitted evidence related solely to issues not presented on appeal, and this court has all the evidence bearing on the questions we are called upon to review, the above rule does not apply, Parties are invited by agreement to abridge the record as far as may be without prejudice to a right of review. For like reasons, we would not deny relief here because, for any reason, immaterial matters are omitted. Fleming v. Copeland, 210 Ala. 389, 98 So. 128; Wood v. Wood, 119 Ala. 183, 24 So. 841; Jefferson v. Sadler, 155 Ala. 537, 46 So. 969.

The items of evidence omitted from the present record are certain original deeds and mortgages made exhibits to depositions, and certified to be lost. Exhibits 26 and 27 to testimony of respondent W. K. Horton are deeds offered as part of the chain of title of J. E. Wilson, the deceased mortgagor. Both parties claim through him. These deeds may also bear upon the original indebtedness, entering into mortgages antedating the wife's deed, and finally merged or renewed in the mortgage in suit. This issue was found for respondent. The validity and priority of his debt is not now in question. We consider this omission not material.

Exhibit No. 30 is shown to have been a mortgage from J. E. Wilson to W. K. Horton in 1911, the year before the real estate mortgage deed was executed, with a contemporaneous bill of sale to sawmill, grist mill, gin, etc., for a separate debt. As we understand the testimony, all prior debts were merged in these later papers. However, one important issue is the general financial condition of Mr. Wilson as evidenced in part by the series of mortgages through the years, and continuing to the year of his death. We must consider this lost mortgage an item of evidence on this general issue of ability to pay as claimed by appellants. In passing upon that question, we indulge the presumption that such a mortgage existed.

It further appears that numerous other deeds and mortgages were lost. The clerk certifies a list of them, and has made a part of the transcript copies taken by him from the records of deeds and mortgages in office of the judge of probate. This, no doubt, is a bona fide effort to make a full record and certify all the facts to this court. The clerk has only the duty to safely keep original documents filed in his office, and copy them into the record. If lost, their substitution is a judicial function on proper hearing. Here, the clerk certifies the record contains true copies of these documents as taken from the office of a recording officer. There was no motion for certiorari to complete the record, and no motion to strike this portion of the transcript. Objection is made thereto in brief for appellee.

We think it best to adhere to one uniform rule, viz.: To ignore or strike, exmero motu, anything in the record not made a part thereof in the manner fixed by law. Any other rule would lead to uncertainty, delay, and maybe injustice. These deeds and...