Bley v. Lewis

McCLELLAN, J. This is an action in statutory ejectment. Isidore Bley, James F. Compton, and Benjamin F. Gregory are the plaintiffs (appellants) ; and Maggie M. Lewis is defendant (appellee). In the paper signed by the presiding judge as for a bill of exceptions on appeal to this court, this recital appears: “The plaintiff offered in evidence a deed from Isidore Bley wild B. F. Gregory conveying the undivided one-third interest in the land asked for dated December 1, 1910, filed for record December 14, 1910. (The clerk will here insert the above deed).” With the evident purpose of complying with the direction given in the quoted recital of the bill of exceptions, the clerk of the circuit court of Marengo county, whose duty it was to prepare the transcript for appeal, inserted in the part of the transcript devoted to the bill of exceptions, and at the appropriate place therein, a deed corresponding in date of execution and in date of filing for record with the descriptive words and figures appearing in the quoted recital and according with the character of interest or title mentioned in that recital; but the deed so inserted, in copy, by the clerk, was one in which Isidore Bley was grantor and B. F. Gregory was grantee, and it described the land sued for in the complaint in this cause. Motion is now made by the appellee to strike the paper so inserted by the clerk; — 539 — and this upon the notion that either the direction in the quoted recital is too uncertain in idenitficaion of the paper to be inserted, or the instrument in fact inserted by the clerk is not the paper called for in the quoted recital of the bill. In our cases of Looney v. Bush, Minor, 413, Pearce v. Clements, 73 Ala. 256, and Elliott v. Round Mountain C. & I. Co., 108 Ala. 640, 18 South. 689, the pertinent rule— written with great strictness, but no more so than the public importance of its subject exacts — is set down. It will not be departed from at this late day, nor will its effectiveness be impaired in practical administration. Mindful as we are of the rule for particular definiteness of identification in order to effect the lawful insertion in a bill of exceptions of a paper referred to and thus incorporated as a part thereof, we cannot find in the circumstances here involved such degree of uncertainty of identification as would permit the striking of the paper mentioned, to which action the appellee moves us. The rule, in such cases, is satisfied if the reference identifies the document in a way “to reasonably exclude a mistake-with reference thereto.” Here the paper inserted accords with the direction in the bill in respect of the date of execution and the date of filing for record. It is manifest that the word “and,” appearing between the names in the recital, is a clerical misprision only. The use, in referring to a deed, of the word “from” before the first name, confirms that fact. Gregory is one of the parties to the suit. It is not asserted that any other instrument, according with the other elements of the direction to the clerk, was mentioned on the trial. The word “asked” is so associated with the other descriptive terms as to make absolutely certain that the purpose in its use was to refer to the land in suit. — 540 — The motion to strike the whole hill and to strike the part thereof containing the deed from Bley to Gregory is overruled. There is no merit in the motion to strike the bill of exceptions because violative of rules of Supreme Court practice governing the form and character of bills of exceptions. The plaintiffs’ right to recover is rested on a mortgage executed on the 7th day of February, 1903, by Maggie M. Lewis and her husband, A. M. Lewis, describing lands owned by the wife. The mortgage was foreclosed under the power, and Bley became the purchaser at the foreclosure sale. Each of the plaintiffs owns, if the mortgage was valid, an undivided one-third interest in the lands sued for. The defense asserted is that the indebtedness for the security of which the mortgage was given was the debt of the husband, and not that of the wife; and, if so, the instrument was void under the statute.— Code, § 4497. The evidence on the trial was in conflict on .this point, and so the solution of the issue was the jury’s province. There were a number of rulings on the admission or rejection of evidence. Except that to be now considered, none of these, of which appellants complain, appear to have been affected with prejudicial error. The court permitted Mrs. Lewis to adduce testimony to the effect that Mrs. Lewis declared, in the presence of Allen, the justice, on the day previous to the day on which Allen took her acknowledgement of her execution of the mortgage of February 7, 1903, but without the presence of -Mayer Bros., the mortgagees, that the debt, which the mortgage was to secure, was the debt of her husband, A. M. Lewis, and not her debt; the court expressly limiting this testimony “to the fact [in dispute] as to whether it was her debt and she was surety for it.” Unless the declaration — 541 — mentioned was of the res gestae of the execution of the mortgage — the fact of its execution being admitted by Mrs. Lewis — it was inadmissible, and was erroneously received in evidence even though limited as the court undertook to do; for, if not of the res gestae of the execution of the instrument, it, at best, was self-serving only. It appears that the justice went to Mrs. Lewis’ home to perfect the description of the land in the mortgage— through information to be and that was obtained from her husband — and Mrs. Lewis was then asked to sign the instrument and give her acknowledgment of its execution, but then flatly declined, stating it was not her debt. The next day she went to the home of the justice and there executed the instrument, giving her acknowledgment in the usual way. Obviously, what took place between the justice and Mrs. Lewis on the day previous to the execution of the instrument was not so related to the fact and act of execution as to render it a part, and explanatory, of the act and fact of execution of the instrument. It was not an element of the negotiations, between the parties, leading to the consummation of a binding obligation between them, as was the circumstance in Weaver v. Lapsley, 42 Ala. 601, 94 Am. Dec. 671, and in Marks v. Bank, 79 Ala. 550, 58 Am. Rep. 620. There was evidence tending to show that a sum paid by the mortgagees, Mayer Bros., to satisfy a prior mortgage given by Mrs. Lewis on this land to a “Syndicate,” •formed a part of the indebtedness for the security of which the mortgage to Mayer Bros., of date February '7,1903, was given. Where a part of the mortgage indebtedness is the joint or several indebtedness of the wife, the mortgage is valid to the extent it secures the payment of her indebtedness, .and passes the legal title.—Mills v. Hudmon, 175 Ala. — 542 — 448, 57 South. 739. The burden of proof is on the wife seeking to avoid the incumbrance of her property to show that her relation is that of surety only to the indebtedness secured by the mortgage.—Mills v. Hudmon, supra. Charge 10, given at the defendant’s request, was affected with prejudicial error. Under it the invalidity of the mortgage was predicated of the securing of a “past debt of the husband,” notwithstanding there was evidence tending to show that another part of that indebtedness was the wife’s. The charge is not, under the evidence here, merely calculated to mislead, so as to put the opposing party to an explanatory instruction. Charge X., refused to plaintiffs, omitted to incorporate in its hypothesis the essential fact that the acts enumerated were referred or referable to the indebtedness secured by the mortgage of February 7, 1903. It was faulty on that account, justifying its refusal. Charge Z was properly refused to plaintiffs. It was subject to the substancé of the criticism just made of charge X; and, besides as written, it was faulty in giving undue prominence to a particular feature of the evidence. Charge A, given for the defendant, should not. have been so favored by the court. It interjected an issue, as. upon a presumption of law, not properly in the case. A mortgage given by the wife on her property to secure an indebtedness of the husband, only, is invalid without regard to notice of the fact to the mortgagee. There is no presumption of law prevailing in such circumstances-for the basis of the asserted presumption is wholly unimportant and immaterial. This charge may quite reasonably have had prejudicial influence upon the minds of the jury, by impressing them with the unfounded notion that the law imputed notice to the mortgagees in conse — 543 — quence of the hypothesized fact of the wife’s suretyship. For the errors committed in admitting the evidence indicated above and in giving charge 10, the judgment is reversed and the cause is remanded. Reversed and remanded. Sayre, de Graffenried, and Gardner, JJ., concur.