Hughes v. Bullen

ANDERSON, C. J. The appellant, by next friend, filed a bill to cancel a mortgage held by this appellee upon the ground that he was a non compos mentis at the time of executing same. It may. be doubtful as to whether or not the appellant, though weak-minded, was, at the time the mortgage was executed, incapable of making a valid contract even according to the evidence of the Medical men, which is the most favorable to his contention, within the rule declared in the case of In re Carmichael, 36 Ala. 514, a point we may concede, however, only for the purpose of deciding this case, for the reason that this appellee was a bona fide purchaser under the terms of section 3347 of the Code-of 1907, and which has been construed as including mortgages as well as absolute conveyances. Alexander v. Livingston, 206 Ala. 186, 89 South. 520; Thomas v. Holden, 191 Ala. 142, 67 South. 992; Hale v. Hale, 201 Ala. 28, 75 South. 150. While there is proof of the appellant’s failing health, the *135 great weight of the evidence shows that at the time he made the mortgage in question he was transacting his business in the usual and ordinary way and there was nothing about his conduct to impress upon those coming in daily or constant contact with him that his mind was impaired. Not only does the weight of the evidence show that this man was not abnormal mentally to the ordinary observer or those having dealings with him, but his father, the next friend, and brothers, dealt with him in a business way; one procuring a deed from him and the others bought his timber. As the bill seeks to declare the mortgage void and is not framed under section 3347 of the Code, the circuit court did not err in refusing the relief sought, and the decree is affirmed. Affirmed. SAYRE, SOMERVILLE, GARDNER, THOMAS, and MILLER, JJ. concur.