Jones v. Gurlie

Campbell, C. J., delivered the opinion of the court. The case made by the bill is that Freeman Jones transferred the bond for title to his homestead to 'Willis Fransberry to secure him against loss by reason of his becoming bail for his appearance at court to answer an indictment; that Fransberry transferred the bond for title to .Payne, who obtained a deed from the obligor in the bond, and afterward sold and conveyed the land described in the bond to Blumer; that the transfer of the bond to Fransberry [427] was as indemnity against loss, and that no loss had been sustained or could be by Fransberry on account of his having become bail; that Jones had died, and that his homestead right had descended to his widow and children who are entitled to have a conveyance of the legal title of the land by Blumer, who purchased with notice of thfc state of the title from Payne, who obtained from Fransberry the bond for title with full knowledge of the way in which he held it, and procured title from Mrs. Gurlie with intent to defeat the rights of complainants. The bill oilers to pay what Payne paid to obtain title from Mrs. Gurlie. While the bill states that Payne obtained from Mrs. Gurlie a deed to the land, it prays a production of the deed by Payne. One of the complainants sues as an infant. The case made by the evidence is that the transfer of his homestead by Jones to Fransberry was not joined in by his wife, and it was therefore invalid. It appears that she ivas expected to sign the transfer, and a place was left for her signature, and she subsequently acknowledged before the clerk that she had signed, sealed, and delivered it, but it is manifest that she did not in fact sign the transfer, and her mere acknowledgment that she had signed it is not a substitute for signing or proof of it. If she had been present when Mr. Wood wrote her name, and he had written it as her signature, or if she had, with her attention distinctly called to it, adopted the signature of her name as written it would have been sufficient, but the facts are that she was not present; that Mr. Wood did not undertake to sign her name for her but wrote it in Her the usual manner thus: “Tena Jones,” leaving the signing to mark be done by her making some sort of mark in the blank space left for it, and this making her mark was to be signing by her, until which it was not considered signed by her. The evidence shows that on the next day she came before the clerk who had on the day before written and signed the certificate of acknowledgment and acknowledged the transfer, but it is not suggested that she put her mark on the paper, or that she saw it, or thát she expressly adopted the act of Mr. Wood as her signature of the transfer.' [428] It is therefore obvious that, on the case made by the evidence, the transfer of the bond as a conveyance of the homestead was invalid and conferred no right on Fransberry, and that none could be obtained from him. The answer of Payne shows that the “so-called” deed of Mrs. Gurlie is a mere receipt for purchase-money, and that th4 legal title is in her, and, therefore, Payne got and conveyed to Blumer only an equity, and that Blumer, although innocent in the transaction, holds subject to prior equities. We entertain no doubt that the transfer of the bond for title by Jones was as security to Fransberry against loss, and that Payne had full notice of the terms on which the bond was held by Fransberry, and that Payne became a trustee by the assignment of the bond to him, and if he had succeeded in placing, the title in Blumer so as to be beyond the reach of the claim of the complainants, they would have been entitled to a decree against him personally for the amount of their loss sustained by his act. As the rights of an infant complainant are involved, the Chancellor should have ordered the bill amended so as to present the case made by the evidence, and we now render the decree which should have been made below. Decree reversed, and leave given to complainants to amend their bill so as to question the validity of the transfer of the bond for title to Fransberry, and so as to show that the legal title remains in Mrs. Q-urlie, and that only an equity was acquired by Dimmer, and otherwise as complainants may be advised, and cause remanded to be proceeded in as herein indicated.