Opinion
6 Div. 428.
October 23, 1930.
Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.
J. M. Pennington, of Jasper, and Coleman, Coleman, Spain Stewart, of Birmingham, for appellant.
Where parties have entered into a contract in writing, they are presumed to have expressed their agreement truly, and cannot be allowed to add to, vary, explain, or contradict is by parol testimony of stipulations previously or simultaneously made. 6 Michie's Ala. Dig., p. 351, and authorities cited. Where a mortgage secures a specific debt, it cannot be enlarged or extended by parol so as to secure additional obligations. Edwards v. Dwight, 68 Ala. 389; Hanchey v. Powell, 171 Ala. 597, 55 So. 97; Tison v. People, 57 Ala. 323; Wilkerson v. Tillman, 66 Ala. 532; Formby v. Williams, 203 Ala. 19, 81 So. 682; Security Tr. Co. v. Fidelity Dep. Co., 184 Cal. 173. 193 P. 102; Loe v. Brown, 155 Ga. 24, 116 S.E. 312; 22 C.J. 1134; 41 C.J. 288; 19 R.C.L. 243. Release of property mortgaged results incidentally from payment by operation of law, and not from any agreement of the parties. Abbeville L. S. Co. v. Walden, 209 Ala. 315, 96 So. 237; Formby v. Williams, supra; Code 1923, § 9026. Notice to an agent, to be notice to a principal, must be notice acquired by the agent in the line and scope of his authority and about a transaction then depending. Hall Brown W. M. Co. v. Haley F. M. Co., 174 Ala. 190, 56 So. 726, L.R.A. 1918B, 924; Hattemer v. Davis, 206 Ala. 614, 91 So. 321; Central of Ga. R. Co. v. Joseph, 125 Ala. 319, 28 So. 35; Morris v. First Nat. Bank, 162 Ala. 301, 50 So. 137; Alabama W. R. Co. v. Bush, 182 Ala. 113, 62 So. 89; Patterson v. Irvin, 142 Ala. 40, 38 So. 121; Branch Bank of Huntsville Bank v. Steele, 10 Ala. 915.
Davis Curtis, of Jasper, for appellee.
Parol proof is admissible to show that a mortgage was given to secure future advances, and the actual consideration is subject to parol explanation. 41 C.J. 455; 22 C.J. 1261; 1 Jones on Mortgages, § 374; 3 Mayfield's Dig. 556; 6 Michie's Ala. Dig. 375; Wilkerson v. Tillman, 66 Ala. 532; Lovelace v. Webb, 62 Ala. 271; Collier v. Faulk, 69 Ala. 58; Lawson v. Alabama Wh. Co., 80 Ala. 341; Huckaba v. Abbott, 87 Ala. 554, 6 So. 48; Baker v. Horsley, 212 Ala. 181, 101 So. 830; Eckles v. Carter, 26 Ala. 563; Henry v. Murphy, 54 Ala. 255; Hendon v. Norris, 110 Ala. 106, 20 So. 27; Ladd v. Lookout Mt. Co., 147 Ala. 173, 40 So. 610; Tison v. Peoples S. L. Ass'n, 57 Ala. 323; Forsyth v. Preer, 62 Ala. 443; Jones v. First Nat. Bank, 206 Ala. 203, 89 So. 437; Harris v. Geneva Mill Co., 209 Ala. 538, 96 So. 622. Securing extensions, paying interest, etc., was a complete ratification by plaintiff of the transaction. Cassimus v. Scottish U. N. Ins. Co., 135 Ala. 256, 33 So. 163; Triple Link M. Ind. Co. v. Williams, 121 Ala. 138, 26 So. 19, 77 Am. St. Rep. 34; Birmingham News Co. v. Birmingham Ptg. Co., 209 Ala. 403, 96 So. 336; 21 C.J. 1115. Bynon was the agent of his wife, and all the matters that came to him in the transaction with the bank were known to her. Code 1923, §§ 9434, 9438; 11. Michie's Ala. Dig. 101; Blount Co. Bank v. Harris, 200 Ala. 669, 77 So. 43; Young v. Lehman, Durr Co., 63 Ala. 519; Beasley v. Beasley, 206 Ala. 480, 90 So. 347.
The mortgage in question recites that it was given to secure an indebtedness evidenced by a certain note therein described, and makes no reference to future advances. However, oral evidence was admissible to show that the actual consideration was advances to be made. Huckaba v. Abbott, 87 Ala. 409, 6 So. 48; Kirby v. Raines, 138 Ala. 194, 35 So. 118, 100 Am. St. Rep. 39; Manchuria. Co. v. Donald Co., 200 Ala. 641, 77 So. 12.
The witness Kropp, who seems to have been believed by the jury, and who was the plaintiff's witness, said that the mortgage was given to hold as security for drafts to meet the pay rolls between the making and maturity of same; in other words, that the mortgage was to operate as security for any balance due the bank for that period, not, of course, to exceed the amount for which the mortgage was given. This could be shown by parol evidence and without offending the rule against changing the legal effect of the instrument. Lippincott v. Lawrie, 119 Wis. 573, 97 So. 179, and cases cited; Jones on Mortgages (8th Ed.) § 450. It seems well settled by the weight of authority, including our own decisions, that parol evidence is admissible to show that a mortgage was given to secure future advances, although it recited that it was given to secure a present or past indebtedness, and, such being the case, it can as well be shown that it was given to stand as a continuing security for any balance due upon advances to be made during a certain period. Lippincott v. Lawrie, supra.
True, in order for the understanding between the appellant's husband and Kropp, the president of the bank, to be binding upon the appellant, she must have previously authorized or subsequently ratified such an agreement or understanding. Kropp, who was the plaintiff's witness, testified to such an agreement with the husband, and there was evidence from which the jury could infer that the appellant knew of the purpose for which the note and mortgage was given and either authorized or ratified the understanding. Hence the trial court did not err in refusing the plaintiff's affirmative charge.
As above stated, parol evidence was admissible to show the real consideration of the mortgage and this was done by showing the agreement between Kropp and plaintiff's husband, who negotiated the extension of the credit, and there was proof from which the jury could infer that the appellant knew of this arrangement and either authorized or ratified same. The trial court did not err in permitting proof of what occurred and was said between Kropp and plaintiff's husband leading up to and in consummating the transaction.
There was no error in giving the defendant's charge embodied in the thirteenth assignment of error. It was in the abstract a correct statement.
Charge 15, given for the defendant, correctly hypothesized the defense to the plaintiff's case. It is criticized because of the use of the word "believe," but it has been settled by this court that, while the use of this word may justify a refusal of such a charge, the giving of same will not work reversible error. Birmingham R. R. v. Nelson, 216 Ala. 149, 112 So. 422.
There was no error in refusing the plaintiff's charge made the basis of the ninth assignment of error. It invaded the province of the jury.
As stated in brief of counsel, charges 1 to 8, inclusive, "leave out the question of the mortgage being given for future advances and constitute directions to the jury to find for the plaintiff if they are reasonably satisfied that the mortgage was given to secure a draft of $3,700.00 or an indebtedness of $3,700.00 as the instrument purports to be." This, of course, leaves out of consideration the fact that it may have been given to secure said draft as well as other drafts or indebtedness as testified to by plaintiff's witness, Kropp.
Assignments 14, 15, 16, 17, 18, 19, 20, 21, 22, and 23 are grouped in argument, and it is insisted that the transaction between the plaintiff's husband and Kropp, the bank president, should not have been gone into because she was not present. This contention overlooks the fact that the husband was acting as the agent of the plaintiff, and the evidence afforded an inference for the jury that she authorized or ratified his action in the matter.
Finding no reversible error in the record, the judgment of the circuit court is affirmed.
Affirmed.
GARDNER, BOULDIN, and FOSTER, JJ., concur.