Harper v. T. N. Hayes Co. , 149 Ala. 174 ( 1907 )

DOWDELL, J. —

This cause was submitted in the court below by the parties for a. final decree on the pleadings and evidence as noted by the register, and it is from the final decree rendered on this submission and hearing that the present appeal is prosecuted. The note of submission made by the register is silent as to any objection or objections by either party to the evidence, or any part of the evidence, offered, and it does not otherwise appear that any objections to the evidence were made to the court on the hearing of the- cause. For this reason we might now disregard questions here raised on objections- to evidence as being now raised for the first time.

The undisputed evidence in the case shows that the 30 acres of land sought to he subjected by the complainant was the separate estate of Mrs. Julia Sloan, the legal title to which resided in her. If the conveyance, Avhich purported on its face to be an absolute deed from H. W. Sloan and Julia Sloan to T. N. Hays, conveying the 30 acres in question, was- intended by the parties to be and operate as a mortgage and to secure the debt of the husband, H. W. Sloan, it was absolutely void as a security by the Avife for the husband’s debt, and therefore conveyed no title. The evidence Avithout dispute further shows that the 30 acres formed a paid of the Avife’s homestead, upon AAdiicii she and her husband at the time resided, and Avhich in area Avas less than 160 acres and in value less than $2,000. If the .conveyance Avas Amid for the reason that it Avas made on the Avife’s land to secure a debt of the husband, then at the death 'of Mrs. Julia Sloan the legal title to the homestead vested in the minor children surviving her, cutting off any estate by curtesy to the husband. — Code 1896, .§ 2077; Quinn v. Campbell, 126 Ala. 280, 28 South. 676. This being true, H. W. Sloan had no such pecuniary interest in the result of the suit as would disqualify him to testify as a Avitness in the case.

If E. T. Sloan, by reason of being a nominal stockholder of one share in the T. N. Hays Company, could be said to he a person having a pecuniary interest in the result of the suit, affecting his competency as a Avitness, which Ave do not decide, the fact remains that he was called to testify by the persons to Avhom his interest was opposed. It is a Avell-settled rule that, Avhen a conveyance which purports on its face to be an absolute deed is sought to be shoAvn to be a mortgage, it must be done by evidence that is clear and satisfaclry. — Jordan v. Garner, 101 Ala. 414, 13 South. 678; Adams v. Pilcher, 92 Ala. 477, 8 South. 757; Peagler v. Stabler, 91 Ala. 308, 9 South. 157.

We think the evidence in this case very clearly and satisfactorily sIioaa'S that the deed in question was intended to operate as a mortgage. All the circumstantial facts in the case are corroborative of the testimony of the Avitness along this line. It appears, from the answer of the respondent Sloan and the testimony on which the cause was submitted for final decree, that the children, heirs at law of Mrs. Sloan, deceased, were necessary parties to the bill, and they were not made parties. This was sufficient to justify the chancellor in dismissing the bill; but it should have been dismissed without prejudice, and to that extent the decree will be here modified, and, a,s modified, will be affirmed.

Tyson, C. J., and Anderson and McClellan, JJ., concur.