Crossthwait v. Treherne , 118 Ala. 659 ( 1897 )

The appellant filed his bill to foreclose a mortgage, having the names of the appellee, Alfred Treherne and his wife, Khoda Treherne, affixed thereto as mortgagors. The defense set up was that the lands embraced in the mortgage, constituted the homestead of the said Treherne and wife, and that the wife never signed the mortgage nor acknowledged the execution of said mortgage, nor appeared before any officer for that purpose, and that she did not know of its existence.

On the final submission of the cause on the pleadings and proof, the chancellor decreed that the complainant was not entitled to the relief prayed for, and ordered the bill dismissed. From this decree the complainant prosecutes the present appeal.

The evidence of all the witnesses examined, including the justice of the peace who issued the certificates, established, without controversy, that the wife neither signed the mortgage nor acknowledged the execution thereof, and that she did not know of its. existence. The only question open for the consideration of the lower court, was whether the lands at the time of the execution of the mortgage constituted the homestead. The chancellor found this issue in favor of the respondent. After a careful examination of the legal evidence in the case, this court comes to the same conclusion as that reached by the chancellor. The decree is affirmed.

Opinion by

Coleman, J.