Hamil v. American Freehold Land Mortgage Co.

TYSON, J. It cannot now be a matter of serious controversy that Gamble and the Loan Company of Alabama were the agents of the complainant to negotiate the lean fo-** her, and not the agent of the Mortgage Com [100] pany to whom, the notes and mortgages executed by her in February, 1891, were negotiated. The same contract by which the Loan Company undertook to negotiate and did negotiate the loan for her has been frequently before this court, and we may say that substantially the same facts as shown by this record relative to the procuring of the loan and the means and methods adopted by the complainant to negotiate it, have been several times reviewed^ It has been held on the questions here involved that the agencies employed were hers and not those of the lender.- — Land Mortgage and Agency Co. v. Preston, 119 Ala. 290; 24 So. Rep. 707; American Mortgage Co. v. King, 105 Ala. 358; Edinburgh American Land Mortgage Co. v. Peoples, 102 Ala. 241; George v. New England Mortgage Co., 109 Ala., 548. It is a matter of no consequence, so far as the rights of the Mortgage .Company are involved, what became of the proceeds arising out of the negotiation since it is not controverted that they were paid to Cambie, her agent, authorized in writing by her in conformity to the statute, to receive them. — Hollingsworth v. Hill, 116 Ala. 184; American Mortgage Co. v. King, supra; Guin v. New England Mortgage Co., 92 Ala. 135; American Freehold Land Mortgage Co. v. Thornton, 108 Ala. 258. The execution by the complainant of the application for the loan, and the notes and mortgage negotiated by her agents to the Mortgage Company and her final affidavit as to her ownership of the lands conveyed by the mortgage, is not -denied by her. In her application for the loan known as “applicant’s contract” is this language: “Whereas, I have this day employed the Loan Company of Alabama to negotiate for me a loan of $1,450 for the term of five years, with interest at the rate of . . per cent, per annum upon a note and mortgage 'securing the same, which shall be a first lien upon my farm in Pike-county, Alabama.” In the mortgage which she and her husband executed and authorized her agent to negotiate to the Mortgage Company, following immediately upon the description of the lands, is this recital: “It is understood that said lands are the [101] separate estate of the said Orlena A. Hamil, and that this mortgage and said notes are made with the assent and concurrence of the said Irby W.' Hamil, her husband, hereby expressed in writing, and that the said Irby W. Hamil is jointly bound with his wife on said notes.” In what is known as her final affidavit, the most solemn of the three writings, made under the sanctity of an oath, Ave find she made this statement: “I, Orlena A. Hamil, of the county and State aforesaid, liaAung on the 16th day of February, 1891, executed a mortgage to the American Freehold Land Mortgage Company of London, Limited, upoii 318 acres of land in sections 11, 10, 14, 15, tOAvnship 9, It. 19, particularly described in said mortgage and the abstract of title to said land made by John Gamble, Jr., dated 14 January, 1891, furnished by me to the said American Freehold Land Mortgage Company of London, Limited, do solemnly SAvear. that no one has a better title in Iuav or equity to said premises, etc. * * * that said mortgage is noAV valid in law and in fact, is the first lien upon said premises; and that I make the above statement and representation for the .purpose of procuring from said American Freehold Land Mortgage Company of London, Limited, the money upon the loan of $1,450 for the security of Avhich the mortgage is given, and for no ether purpose whatsoever.” This paper bears date Feb. 17, 1891. On this same day her agent Gamble made a. draft on the Loan Company of Alabama for. the $1,450 and forAvarded the notes and mortgage to it to be negotiated to. the Mortgage Company. There is not an .averment in the complainant’s bill, nor an allegation in her answer to the cross bill of the Mortgage Company alleging any fraud in the execution of these papers. There is not an intimation in her pleadings that she Avas induced by misrepresentations made by any person to sign these papers or that her signature to them- Avas procured by fraud. All that' is alleged is, that the debt Avas not hers, but that of her husband. It is upon this allegation in her bill and answer to the cross bill, that she seeks relief from im [102] rnunity against tlie sale of her lands conveyed by the mortgage. The case might well end here, so far as fraud is concerned, upon the familiar principle, that fraud when relied upon as a defense or is made the basis for affirmative relief, must be specially pleaded. In order to avoid the effect of her acts and declarations the complainant insists that as the notes and mortgage to the Mortgage Company were executed in 1891, prior to the passage of the act of Feb. 16, 1895, entitled “An act to amend § 2348 of the Code’’ (1886) and while the Code of 1886 was in force, that as to this mortgage she was under the disability of coverture at common law. A reading of the act of Feb. 16, 1895, (Acts 1894-5, p. 1138) will disclose that it simply conferred upon her the right to alienate or mortgage her real property without the assent or concurrence of her husband, in certain contingencies therein named in which the law making power deemed the husband incapacitated by reason of insanity, or of becoming a nonresident of the ’State, or imprisonment for crime for a period of exceeding two years. Under the provision of the Code of 1886 (§ 2348), in the event the husband became incapacitated by reason of the happening of either of the contingencies above named, she could only sell her lands, and had no power to mortgage them. Neither of these provisions, however, affected her right to mortgage her real estate with the assent or concurrence of her husband when he had capacity to give his assent or concurrence. Full legal capacity was conferred upon her by § 2346 (Code, 1886) to contract in writing as if she were sole with the assent or concurrence of her husband expressed in writing. Under this section, there is no doubt that the wife could make a valid mortgage upon her property by conforming to the statutory requirements. — Scott v. Cotton, 91 Ala. 623. The papers show the money was loaned to her and not her husband, and the evidence shows that the money was paid to her agent. If it be a fact that the husband got the money and used it, the debt would be hers nevertheless. The decree of the chancery court is affirmed.