King v. Seals

PETERS, J. This is a suit in equity for tbe foreclosure of a mortgage. The bill is in the usual form. Tbe cause was submitted to the chancellor on tbe bill, exhibits, answer, demurrer, plea, and proofs. On the hearing, tbe chancellor overruled tbe demurrer, and decreed a foreclosure of the mortgage by sale unless tbe money due on the [417] promissory note secured in the mortgage was paid in the time specified in the decree. The defendant, King, in the circuit court below, appeals to this court, and here assigns the overruling of his demurrer and the decree of the chancellor as error. The pleadings and proofs show that appellant, King, on January 16,1861, owed Mrs. Abi Cash the sum of $4,650 72. There was some proof to show that part of this indebtedness was due Mrs. Cash as guardian of Nancy and Hilliard King. Eor this sum, he executed his note to her of that date, and to secure the payment of the same, he executed and delivered to her a mortgage of like date with the note and contemporaneously with it, on certain lands then claimed by him. This mortgage was duly executed and recorded, as required by law. These lands are not very carefully described in the mortgage ; but it appears that they were in section 22, in township 12, and range 25, in the county of Barbour, in this State, and contained in all five hundred and forty-one acres, “ being the same by said Robert H. King (the maker of the mortgage) purchased at the sale of the real estate of Henry King’s minor children, and made by said Abi Cash, (mortgagee) then Abi King, guardian of said minors.” The note fell due on the first day of January, 1863. Mrs. Abi Cash had formerly been the wife of said Henry King; and after said Henry King’s death, and during her widowhood, she -had been regularly appointed guardian of said deceased’s minor children, had accepted the same, given bond, and acted as such. During her widowhood, Mrs. Cash, formerly King, owned and possessed some statutory separate estate; but its value is not certainly shown. After the death of said Henry King, Mrs. Cash intermarried with Cash, and during her coverture with him the note and mortgage above said were made and delivered to her as abovesaid. Mrs. Cash died during her coverture with her last husband, Cash, and disposed of her separate estate by her will. Seals was appointed her executor ; he accepted the appointment, qualified, gave bond as such, and letters testamentary were regularly issued to him as required by law. It also seems that a part of the lands mortgaged as abovesaid were in the possession of on [418] Tandy King when they were so mortgaged, and that he claimed the same under color of title, and adversely to said mortgagor. The demurrer objects to the bill for want of equity, for Uon-joinder of parties plaintiff or defendant, and because the lands are not described with sufficient accuracy to enable the chancellor to decree a sale. The parties omitted are alleged to be Nancy and Hilliard King, minor children of said Henry King, deceased, as complainants or defendants, and Tandy King as a defendant. There was also a sworn plea, denying the execution of the note and mortgage, and the indebtedness either to Mrs. Cash individually or as guardian, and alleging that the note and mortgage were made to her as a married woman, and that the note was without consideration. The answer ffatly denies the indebtedness to Mrs. Cash in any way, and the executor of the note and mortgage as they now appear to have been made. A married woman may become entitled to property in this State to the same extent that any other person may. Goree v. Walthall, January Term, 1870; Rev. Code, § 2371. Debts are property, under our law. — Rev. Code, § 2, cl. 3. Then, a married woman may have a debt owing to her as a part of her statutory separate estate, and she may secure the payment of the same by promissory note and mortgage. This power necessarily belongs to the right to own a debt. And at her death she may dispose of her property by will, and her executor succeeds to all her rights of property for the purpose of executing the trust. The debt passes to him upon the death of the wife and the probate of her will; and the mortgage is but a security for the debt, and passes with the debt. — Rev. Code, §§ 2378, 2347; Center v. P. & E. Bank, 2 Ala. 743 ; Graham & Rodgers v. Newman, 21 Ala. 497 ; 2 Lorn. Exec. 2d Ed. 621. A-married woman, during her widowhood, may be appointed a guardian if she is otherwise a suitable person. There is no restriction as to sex required by the statute. — Revised Code, §§ 2408, 2417. It is said in some of the States that even a married woman, during the life time of the husband, with his consent, may be appointed a guardian. — Farrer v. [419] Clark, 29 Miss. 195. But it may be doubted whether such an appointment would be proper in this State.— Vide Wilkinson v. Cheatham, January Term, 1871. Mrs. Cash, then, might have become the guardian of her husband, Henry’s, children, after, his death, and before her marriage with Cash; this, the proofs show, was the case. After becoming such guardian, she might secure the debts due her as such by note and mortgage, as was done in this instance. In any aspect of the proofs, she was competent to receive the note and mortgage mentioned in the bill, either for the security of her own debt, or for her own debt and that of her wards together, or that of the wards alone. Whatever moneys of the wards might have come into her possession as her guardian, she would have to account for it, and she would be entitled to the aid of such securities as she might have taken to enforce its repayment to her. — DeJarnette v. DeJarnette, 41 Ala. 708. A married woman is bound to pay her own debts, (Rev. Code, § 2370,) and unless she should be thus permitted to secure those owing to her, she could not meet her own obligations ; and the law would thus defeat the ability she might otherwise have to obey it. But the preponderance of the evidence in this case clearly shows that the note and mortgage were executed by said Robert H. King at the time they bear date, and that there was a sufficient consideration to support the note and the mortgage. The testimony of the witness, Robert H. King, is subject to the vice of a profession of ignorance of the effect of his own acts, when he ought not to have been ignorant, or strangely forgetful of what he was about in so considerble and deliberate a matter. The rules of evidence in a court of chancery deny to such testimony much weight. In such a case, the preponderance of the evidence must govern; and this is clearly against the defendant, in the court below. — Gress. Eq. 3; Marler v. The State, 2 Ala. 43, 47. The demurrer was properly overruled. The equity of the bill, in any case, is beyond all question. And the description of the lands was so certain that it could be made certain; and that is to be considered certain which can be made so. — 4 Kent, 462 ; 1 Bouv. Inst. 929; Broom’s Max. [420] The wards of Mrs. Cash were not necessary parties to the bill, nor was Tandy King. They had no rights growing out of the contracts upon which the court was called to act that cpuld be effected by the foreclosure, nor were they in any wise privy to the contract of the note or the mortgege. No judgment of the court below could have been made in their favor or against them. —Story Eq. PI. 230. Note by the Reporter. — At a subsequent day of the term, the appellants applied for a rehearing, contending that if the decree of the chancery court was affirmed, the appellants would'be liable to make double satisfaction of the same debt; that chancery will not leave suits of this kind open, but will end all the litigation in one suit, and hence the necessity of a reversal and making the cestui que trust parties. They cited, as to the option of the cestui que trust to follow the property or to hold the trustee personally liable, the case of Oliver v. Piatt, 3 How. 401; and, as to double satisfaction, Miller v. McLane, 10 Ala. 586. My conclusion, therefore, is that, upon the pleadings and the proofs, the decree of the chancellor in the court below is correct. It must, therefore, be affirmed. Let the appellant, said Robert H. King, and his sureties, pay the costs of the appeal in this court and in the court below. The response was delivered by— PETERS, J. The demurrer to the bill was withdrawn. This left the controversy between the mortgagee and the mortgagor. And I am unable to perceive that any such question as that argued by the eminent counsel for appellants is made by the pleadings, or established by the proofs. The rehearing is denied, with costs.