Summary
In Mitchell et al. v. Sessoms Grocery Co., 228 Ala. 360, 361, 153 So. 282, 283, the declaration is made: "That where a wife gives a mortgage on her property and receives a check therefor, and immediately indorses and returns the same to the mortgagee, in pursuance of a prior design, as security for the husband's debt or contract, it will be considered that the wife did not have any freedom in disposing of the money so obtained, and that the arrangement was an agreement for suretyship in accordance with the statute.
Summary of this case from EX PARTE LACYOpinion
4 Div. 740.
December 21, 1933. Rehearing Denied March 22, 1934.
Appeal from Circuit Court, Covington County; Emmet S. Thigpen, Judge.
E. O. Baldwin, of Andalusia, for appellants.
In a suit by the wife to cancel a mortgage as having been given to secure her husband's debt, the husband is a necessary party. Cudd v. Reynolds, 186 Ala. 207, 65 So. 41. Where a wife gave a mortgage on her property and received a check which she immediately indorsed and returned to the mortgagee, it will be considered that the wife never had any freedom of disposing of the money loaned her, and the mortgage is void as an invasion of the statute. Equity will look through form to substance in determining whether the wife directly or indirectly becomes the husband's surety. Spencer v. Leland, 178 Ala. 282, 59 So. 593; Rollings v. Gunter, 211 Ala. 671, 101 So. 446; Smith v. Rothschild Co., 212 Ala. 276, 102 So. 206; Van Derslice v. Merchants' Bank, 213 Ala. 237, 104 So. 663; People's Bank v. Steinhart, 186 Ala. 205, 65 So. 60. A wife can use her property to pay her husband's debts if the transaction does not amount to a suretyship. Fourth Nat. Bank v. Woolfolk, 220 Ala. 344, 125 So. 217.
J. L. Murphy and Powell, Albritton Albritton, all of Andalusia, for appellee.
In a suit to cancel a mortgage as being void on the ground that it was executed by the wife to secure the debt of her husband, the burden is upon her to show that it was actually executed by her as security for the sole debt of the husband. A mortgage to secure the joint obligation of the husband and wife is valid, as is a mortgage given a party who is not the husband's creditor. Lester v. Jacobs, 212 Ala. 614, 103 So. 682; Warren v. Crow, 198 Ala. 670, 73 So. 989; Hall v. Gordon, 189 Ala. 301, 66 So. 493; Stroup v. International L. I. Co., 218 Ala. 382, 118 So. 752; McDaniel v. Mellen, 223 Ala. 181, 134 So. 873; Gibson v. Wallace, 147 Ala. 322, 41 So. 960; Griffin v. Dawsey, 196 Ala. 218, 72 So. 32; Mills v. Hudmon, 175 Ala. 449, 57 So. 739; Lunsford v. Harrison, 131 Ala. 263, 31 So. 24.
The bill by the wife sought cancellation of a mortgage upon her land on the grounds that it was a mere suretyship for the husband's debts contrary to the statute (Code 1923, § 8272), and sought redemption of the land from the mortgage. The wife and the husband were proper parties to the bill. Cudd v. Reynolds, 186 Ala. 207, 65 So. 41; Dewberry v. Bank of Standing Rock, 227 Ala. 484, 150 So. 463; Horst v. Barret, 213 Ala. 173, 177, 104 So. 530.
The recent cases are collected in Dewberry v. Bank of Standing Rock (Ala. Sup.) 150 So. 463; Alabama Farm Bureau Credit Corporation v. Emma G. Helms (Ala. Sup.) 151 So. 589; Spencer v. Leland, 178 Ala. 282, 59 So. 593; Rollings v. Gunter, 211 Ala. 671, 101 So. 446; Smith v. D. Rothschild Co., 212 Ala. 276, 102 So. 206; Van Derslice v. Merchants' Bank, 213 Ala. 237, 104 So. 663; Fourth Nat. Bank of Montgomery v. Woolfolk, 220 Ala. 344, 347, 125 So. 217.
In such a case equity looks through the form to the true facts in determining whether the wife directly or indirectly became the husband's surety. Smith v. D. Rothschild Co., supra; Dewberry v. Bank of Standing Rock, supra; Alabama Farm Bureau Credit Corporation v. Emma G. Helms, supra; Van Derslice v. Merchants' Bank, supra; Bell v. Farmers' Nat. Bank of Opelika, 214 Ala. 211, 106 So. 851.
This court has declared that where a wife gives a mortgage on her property and receives a check therefor, and immediately indorses and returns the same to the mortgagee, in pursuance of a prior design, as security for the husband's debt or contract, it will be considered that the wife did not have any freedom in disposing of the money so obtained, and that the arrangement was an agreement for suretyship in accordance with the statute. Bell v. Farmers' Nat. Bank, supra; Spencer v. Leland, 178 Ala. 282, 59 So. 593; Smith v. Thompson, 201 Ala. 633, 79 So. 195; People's Bank of Greensboro v. Steinhart, 186 Ala. 205, 65 So. 60; Lamkin v. Lovell, 176 Ala. 334, 58 So. 258.
When the evidence is carefully considered from the purchase of the lot and the building of the house thereon at Red Level, the indebtedness was that of the wife, and the subsequent transactions were but arrangements of payment or extension thereof, and did not offend the statute against suretyship, and the trial court so rendered judgment.
The judgment of the circuit court, in equity, is therefore affirmed.
Affirmed.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.