Adams v. Davidson , 192 Ala. 200 ( 1915 )

Mr. Chief Justice Anderson

delivered the opinion of the court; this case having been submitted under the new rule 46 (65 South, vii), and considered and decided thereunder.

(1) The bill in this case seeks the cancellation of a note, as well as of the transfer of certain rent notes, to J. T. Adams, also the cancellation of a deed executed to him, though the effort to cancel the deed was abandoned upon the submission of the cause, as well as a release to certain rent notes held by Dr. Donald as collateral security for a debt of the complainant’s husband, and which had been formerly hypothecated with the said Donald by the complainant’s said husband.

While the bill seeks to set aside separate assignments to different persons, it seems to proceed upon the theory that all of them were contemporaneous, and were brought about by Adams and Donald, acting in part for themselves, and also for the benefit of the bank of which they were officers. In other words, the bill charges that all of the things of which she complains, resulted from one transaction. The bill was not subject to demurrer for multifariousness or for misjoinder.

(2) The bill does not charge such fraud or undue influence on the part of Adams as would vitiate the transfers to him or the original note to him; and, if it did, the proof fully exonerates him.

(3) We may concede that the bill charges an equitable ground for relief as to the Adams note and transfer, upon the idea that the complainant became a surety for her husband, which is forbidden by section 4497 of the Code of 1907; yet the evidence fails' to establish the fact that she became, directly or indirectly; a surety for the debt or defalcation of her husband. Her husband owed the bank, and she (the complainant) wanted the debt paid in order to avoid exposure and a suit on the indemnity bond, and she requested Adams, her husband’s brother-in-law, to help her in getting the money. She got some of the money from friends, and the rest from Adams, which was paid over to the bank, and the indebtedness from her husband to the bank was to this extent extinguished. Neither she nor Adams assumed the debt of her husband, or did anything to secure said indebtedness. What she got from Adams was used, in connection with other checks that she had, to pay the debt. There was no suretyship.

We think the facts bring this case under the influence of Sample v. Guyer, 143 Ala. 613, 42 South. 106.

This case is unlike the case of Lamkin v. Lovell, 176 Ala. 334, 58 South. 258. Here the creditor of the husband, the bank, became in no sense the creditor of the complainant, directly or indirectly; but the wife borrowed f1,700 from Adams, which she used, in connection with two checks which she got from others, in paying the bank, and which was taken by the bank in payment of the debt, and not as security for same. True, Adams was interested in, and connected with, the bank, but there is nothing to indicate that he was acting for said bank, or that he was getting the note and collateral as a mere dummy. He was simply trying to help the complainant adjust the matter, being the brother-in-law of her husband, and having been appealed to by her.

(4) As to the release of the notes to Dr. Donald, the bill, while meager in averment shows a case of surety-ship for the husband, in violation of section 4497 of the Code of 1907, and the proof shows that she released the notes simply and solely as a security for an existing debt of her husband.

The chancery court properly granted the complainant relief against the respondent Donald, but erred in not dismissing the bill as to Adams and all respondents other than Donald and the tenants liable on the notes released to him by the complainant; and the decree must be, in this particular, reversed, and one is here rendered dismissing the bill as to all respondents, except Donald and the tenants owing the notes released to him, and the cause is remanded. The costs of the appeal will be divided equally between the complainant and respondent Donald.

Affirmed in part, reversed and rendered in part, and remanded.

Anderson, C. J., and Mayfield, Somerville, and Thomas,-JJ., concur.