Interstate Bank v. Wesley

McCLELLAN, J. Bill by the wife (appellee) to cancel a mortgage upon her lands, upon the averred theory that the debt (to the appellant bank) it was given to secure was the debt of her husband, and hence void under the letter of Code, § 4497. From the face of the instrument, it appears that the indebtedness in question was the joint obligation of both complainant and her husband, E. J. Wesley. The burden of proof was assumed by complainant, and was upon her, to establish the invalidity, of the mortgage according to the theory stated. Upon reconsideration of the entire legal evidence on the issue, our conclusion is that the plaintiff has dis [188] charged the burden so assumed; that the debt for which the mortgage was given was not, in any part, the debt of the complainant. The decree of the chancellor is therefore affirmed. Affirmed. Simpson, Mayfield, Sayre, and Somerville, JJ., concur. Anderson, J., dissents. Dowdell, C. J., not sitting.