Opinion
4 Div. 695.
April 26, 1917.
Appeal from Chancery Court, Geneva County; O. S. Lewis, Chancellor.
W. O. Mulkey, of Geneva, for appellant. C. D. Carmichael, of Geneva, for appellee.
That the mortgage executed by the complainant (appellee here) was for the security of the debt of her husband, O. C. Austin, is entirely clear from the evidence in this record, and indeed, as we understand brief of counsel for appellant, is not a question seriously controverted on this appeal. It is also, we think, equally clear that the mortgage of complainant and her husband to one Bynum, including the same land and executed the year previous to the mortgage here in question, was for the purpose of securing the debt of the husband. The Bynum mortgage therefore stood on no higher plane than the respondent's, and the fact that the proceeds of the mortgage here in question were used in payment of the Bynum indebtedness is therefore without influence on complainant's right to relief.
Complainant acquired the 40 acres involved as a gift from her mother, and insists that the deed was executed by her alone; that after its execution she kept the deed in her trunk for several years; that when her husband called for it for the purpose of having it recorded she delivered it to him, and that upon his return from Geneva — a distance of ten miles from their home — he insisted that he had lost the original deed, but that a copy could be secured from the record any time it was needed; that she was not aware of any change made in the deed by the insertion of the name of her husband before its recordation, nor suspected any such change at the time of the execution of the mortgage to respondent, and only learned of it since the death of her husband; that she had no part in the transaction here involved, except to sign the mortgage when requested. It would serve no useful purpose to enter into a discussion of the evidence in this case. Suffice it to say that upon a most careful examination of the record, we are fully persuaded that the deed of the mother was made to the complainant alone, and at the time of its execution and delivery to the husband for recordation in the probate office the name of the husband did not appear therein.
It is earnestly insisted, however, that the complainant intrusted the custody of the deed to her husband for the purpose of having it recorded, and thus put it into the power of the husband to practice a fraud upon the respondent, and that complainant should therefore suffer the loss, citing Allen, Bethune Co. v. Maury Co., 66 Ala. 10, among other authorities. The deed was recorded about two years prior to the execution of the mortgage here in question, and the evidence tended to show that it was delivered to the probate judge, recorded, and then delivered back to the husband, all on the same day.
We are fully persuaded that the wife knew nothing of the change made in the deed, and was aware of no fact which would place her on notice of any such change, and was ignorant of the same at the time of the execution of the mortgage. She had no occasion, whatever, to suspect that her husband would do anything other than the simple delivery of the deed into the probate office to be recorded. She not only has been guilty of no wrong herself, but had no notice or intimation that a wrong had been perpetrated by another. We are therefore persuaded that the principle invoked by the appellant's counsel cannot be so far extended as to embrace the situation thus disclosed. The facts in the case of Allen, Bethune Co. v. Maury Co., supra, are not analogous to those here presented, and we are of the opinion that case does not at all militate against the conclusion here reached. The principle sought to be invoked is in the nature of an equitable estoppel, and it clearly cannot be said that the complainant in merely delivering the deed to her husband at his request to be recorded has thus armed him with power to impose upon a third party so as to give rise to any equitable estoppel as against her.
We are persuaded that complainant took no part in the transaction here involved, except in rather a perfunctory manner, in signing the mortgage with her husband, and that she was ignorant of any change having been made in the deed, and made no representations whatever. Clearly, therefore, there could be no estoppel by her conduct. We conclude, therefore, that the decree of the chancellor is without error, and it is accordingly affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.