Summary
In Cates v. White, 252 Ala. 422, 41 So.2d 401, a mortgage given to a party, other than the vendor, who advanced the purchase price, was held to be a purchase-money mortgage given contemporaneously with the purchase and to be superior to a homestead exemption claim.
Summary of this case from Martin v. First National Bank of OpelikaOpinion
8 Div. 458.
June 23, 1949.
Appeal from Limestone County Court; D. L. Rosenau, Jr., Judge.
Russell W. Lynne, of Decatur, for appellants.
The mortgage is a nullity, replete with blank spaces, including a blank as to the due date. There is no separate acknowledgement by the wife and the mortgage is invalid. A court of equity will not relieve against such defective acknowledgement. Cox v. Holcomb, 87 Ala. 589, 6 So. 309, 13 Am.St.Rep. 79; Alford v. Doe, 156 Ala. 438, 47 So. 230, 22 L.R.A., N.S., 216; Henderson v. Kirkland, 127 Ala. 185, 28 So. 674; Code 1940, Tit. 7, § 626. Limestone County Court is not vested with equity jurisdiction. Local Acts 1947, p. 113.
Malone Malone, of Athens, for appellee.
When through fraud or mutual mistake of the parties, or a mistake of one party which the other at the time knew or suspected, a mortgage or other conveyance does not truly express the intention of the parties, it may be revised by a court of equity on application of the party aggrieved so as to express that intention, insofar as this can be done without prejudice to rights acquired by third persons in good faith and for value. Code 1940, Tit. 47, § 136; Snider v. J. E. Freeman Co., 214 Ala. 295, 107 So. 815; Brittain v. Commercial Nat. Bank, 239 Ala. 506, 195 So. 739; McKleroy v. Dishman, 225 Ala. 131, 142 So. 41; 3 Pomeroy's Eq.Jur. 5th Ed. 326. Where an instrument does not, from want of skill or ignorance of draftsman, or from any other cause, express the true agreement of the parties, equity will reform it. Larkins v. Biddle, 21 Ala. 252; McCaskill v. Toole, 218 Ala. 523, 119 So. 214. In absence of due date of mortgage, the presumption is the mortgage is due on demand. 41 C.J. 396.
Bill in equity to reform a mortgage and to foreclose. Demurrer was interposed to the bill of complaint and overruled. The respondents who are the mortgagors appeal.
In substance the bill alleges that the respondents, husband and wife, requested complainant to purchase the property involved for them from another; that he did so and paid the vendor therefor the sum of $3,000.00; that the vendor, at the request of complainant and respondents, transferred the property directly to respondents who executed and delivered to the complainant a mortgage to secure the payment of the sum of $2000.00, the unpaid purchase price advanced by complainant to the vendor. A copy of the mortgage is attached to and made a part of the bill of complaint. From the attached copy of the mortgage it appears that the scrivener who prepared the mortgage for the parties used a printed form containing blanks to be filled in. It is further alleged that many of these blanks were not filled in; "that the defendants undertook to carry out their agreement to execute a mortgage to the complainant to secure the sum of $2,000.00 and did sign the mortgage which is made an exhibit to this bill of complaint which said mortgage was prepared by a person unskilled in preparing mortgages and the same was acknowledged generally before a notary public who likewise was unskilled in matters of this kind; that said mortgage was improperly and incorrectly drawn and filled out as fully appears from the exhibit and these errors and mistakes were mutual and resulted from a lack of knowledge on the part of the person drawing the mortgage and on the part of the complainant and likewise on the part of the defendants and each of them; that they knew nothing about the proper manner and way to prepare mortgages, but it was the intention of the complainant to take a valid mortgage and was also the intention of the defendants to execute a proper and valid mortgage to secure the aforesaid sum of $2,000.00."
As stated by appellants "the main insistence on this appeal is that the separate acknowledgment of the wife (appellant Christine Cates) is in no way attempted to be filled in or acknowledged. There just is not a separate acknowledgment of the wife, and it is our contention that this vitiates the entire instrument as a mortgage."
The cases cited in support of appellants' theory are to the general effect that a conveyance of the homestead must be acknowledged by the wife separate and apart from the husband. But these authorities are not applicable here. In the first place, the bill does not show that a homestead is involved and the demurrer attempting to raise the point is a speaking demurrer. In the second place the bill affirmatively shows that the mortgage is a purchase-money mortgage, and the homestead claim cannot prevail against a purchase-money mortgage given contemporaneously with the purchase. Moses Brothers v. Home Building Loan Ass'n, 100 Ala. 465, 14 So. 412; King et al. v. Chandler, 213 Ala. 337, 105 So. 184; Coon v. Henderson, 240 Ala. 492, 199 So. 704; section 627, Code of 1940, Tit. 7.
Mention is made in brief that the due date of the mortgage is left blank. Section 11, Title 39, Code of 1940, provides that an instrument in which no time is expressed for payment is payable on demand.
The jurisdiction of the Limestone County Court of the matters here involved is not open to question. See Act creating that court, particularly sections 1, 2 and 13, Local Acts 1947, page 113.
Affirmed.
BROWN, FOSTER and SIMPSON, JJ., concur.