American Freehold Land Mortgage Co. v. Thornton , 108 Ala. 258 ( 1895 )

McCLELLAN, J.

The mortgages of The American Freehold Land Mortgage Company, and The Loan Company of Alabama, involved in this case, each embracing along with other land, the homestead of the mortgagors, were confessedly signed by Thornton and his wife in the presence of Manglien, the notary public who brought them to the residence of the mortgagors for the purpose of having them properly executed. On these facts — the presence of the officer for the purpose stated, the presence of the instruments themselves, the presence of the grantors for said purposes and the signing of the papers then and there by them — the notary's certificates of acknowledgment of the husband and the separate acknowledgment of the wife are not open to impeachment by parol evidence, no fraud or •duress having been .shown. — American Freehold Land Mortgage Co. v. James, et al. 105 Ala. 347 ; Jinwright v. Nelson, 105 Ala. 399 ; Grider v. Mortgage Co. 99 Ala. 319.

The further attack upon these mortgages, in so far as they cover certain lands which belonged to M^s. Thornton, which proceeds on the theory of their invalidity to that extent because, as is insisted, the transaction involved the application of her property to the payment of her husband’s debts, is equally untenable. The debts secured by the mortgages were the debts of both husband and wife for money then loaned to them and for services then rendered to them jointly. That the money loaned to them was paid to the husband for himself and wife, presumably with the latter’s consent, and was in greater part squandered by him and in other and small part incidentally expended by him in the payment of debts which he' owed — dispositions with which the complainant Mortgage Co. had no connection, and which are chargeable solely to the wife’s complaisance — is of no consequence ; she cannot now claim immunity of her land merely because she allowed her husband to receive the whole fund, acting,. as he did, for himself and as her agent, and to divert or convert her share of it, the mortgagors having no notice of its contemplated, or even consummated misapplication.

The chancellor held the mortgages void. That was error. The decree must be reversed; and it will be here decreed that the complainant is entitled to the relief prayed in the bill, that the Alabama Loan Co. is entitled to the relief prayed in its cross bill and that the register will take and state an account of the amount, principal and interest, due on the mortgages of said complainant and cross-complainant, and make report of his proceedings hereunder to the next term of the chancery court of Dale county, to the end that said mortgages may be foreclosed by the proper order of said court, and for such purpose this cause is remanded thereto.