Kieser v. Baldwin

STONE, J. If the averments of the appellee’s cross-bill be true, the two notes of two hundred and fifty-six 25-100 dollars each, made by Kieser and wife to Trippe, treasurer, were given in part purchase of the printing press, bought from the Boston and Eairhaven Iron Works; and a mortgage, cotemporaneous with the purchase, was made by Kieser and wife conveying the press as security for the payment of said notes. These notes, it is averred, together with the mortgage security, were traded and transferred to Baldwin, and thus became his property. It is further averred that Baldwin allowed two extensions of these notes ; the first one, without making any change in the mortgage security. In the mean time, as the cross-bill avers, Baldwin had lent B. H. Kieser two hundred and seventy-five dollars, and had taken his note therefor. The mortgage made to Trippe recites that the printing press was the separate property of Mrs. Kieser, and this view is the most favorable one to her interest. In her original bill she alleges it was purchased with the moneys of her statutory separate estate. Under this view, there can be no question that the mortgage to Trippe, securing as it did part purchase of the press mortgaged, was valid and binding. — Marks v. Cowles, 53 Ala. 499; Coleman v. Sterrett, 57 Ala. 172. After the notes thus given by Kieser and wife to Trippe, transferred to Baldwin, had matured, and when the loan note of B. H. Kieser to Baldwin was past due, it is averred that Kieser and wife sold and conveyed the printing press and other furniture of the printing office, to Baldwin, in payment of the three notes ; and that thereupon the three notes and mortgage were given up and canceled. The bill of sale or writing, by which this sale and conveyance were made and evidenced, is shown in the record, and has neither subscrib [529] ing witness, nor certificate of acknowledgment. It is contended for Mrs. Kieser that this transaction paid and discharged the old debt for the purchase money; while at the same time the conveyance is inoperative, by reason that it is without subscribing witnesses. — Code of 1876, § 2707 ; Williams v. Auerbach, 57 Ala. 90. We do not think these two propositions compatible. Both can not be true. A void instrument of conveyance can not operate an extinguishment of the valid lien which existed on the press. We think the conveyance attempted by Kieser and wife to Baldwin, of the absolute title of the press and other property, was ineffectual to convey any thing which was the statutory separate estate of Mrs. Kieser, because it wanted subscribing witnesses ; and that it did not and could not extinguish the debt, in payment of which it was fruitlessly attempted to be made. When Mrs. Kieser renounced and repudiated the sale thus made, it left unimpaired the debt for which the press had previously been made liable. And the subsequent note and mortgage, to the extent they represented the notes and mortgage given to Trippe, were but a continuation of that liability and lien. — Boyd v. Beck, 29 Ala. 712; McGuire v. Van Pelt, 55 Ala. 344. It results from this that, to the extent of the two notes given to Trippe, the mortgage of the printing press to Baldwin, according to the averments of the cross-bill, is valid and binding. As to other property, the cross-bill denies Mrs. Kieser’s ownership, and asserts it is the property of Mr. Kieser, earned with his labor. If this be true, then the mortgage signed by Kieser is a valid conveyance of it, and the cross-bill to enforce the lien is well filed. — 2 Brick. Dig. 257, §§ 147, 149. The Chancery Court did not err in overruling the demurrer to the cross-bill. Affirmed.