#### Interstate Bank *v.*Wesley.

*Bill to Cancel Mortgage as Security for Husband’s Debt.*

(Decided June 29, 1912.

59 South. 621.)

*Husband and Wife; Debt of Husband; Security of Wife.*— Where the wife files a bill to cancel a mortgage on her lands because the same was given to secure a debt of the husband, (as being void under sec. 4497, Code 1907) she has the burden to show that the debt was the separate debt of the husband, and not the joint obligation of both; the majority of the court holding in the present case that the wife has discharged the burden so assumed.

(Anderson, J., dissenting.)

Appeal from Geneva Chancery Court.

Heard before Hon. L. D. Gardner. .

Bill by Mrs. E. C. Wesley against the Interstate Bank to cancel a mortgage on her land, because given as security for the debt of her husband. From a decree granting relief respondent appeals.

Affirmed.

*187C. D. Carmichael, for appellant.

The bill as amended was not proven and there was a variance as to the date of the alleged^ mortgage. The burden is on the wife to show that the mortgage was given to secure the debt of the husband, and that it was not the joint obligation of both of them, or that the money was not loaned to *her.*— Sample *v. Guyer.,*143 Ala. 613; *First Nat. Bank v. Moragne,*128 Ala. 157; *Amer. F. L. Go. v. Thornton,*108 Ala. 258; *Hamil r. Amer. F. L. M. Co.,*127 Ala. 90; *Gafford v. Speaker,*125 Ala. 498; *Lundsford v. Harrison,*131 Ala. 263; *Hollingsworth v. Hill,*116 Ala. 184; *Mohr v. Griffin,*137 Ala. 456; *Gibson v. Wallace,*147 Ala. 322.

W. 0. Mulkey, for appellee.

While the burden is on the wife to show that the debt was the debt of the husband, the question here is largely-one of fact, and under the facts in this case, it appears that the wife has sufficiently carried the *burden.*— Campbell *v. Hughes,*155 Ala. 600; *Freed v. Hooper,*169 Ala. 600, and authorities cited in brief of appellant.

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*188charged 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.

ANDERSON, J.

(dissenting.) — Where a mortgage upon the separate property of a married woman, which shows upon its face that it was made to secure a debt to the mortgagee by the married woman, as principal, and not as surety for her husband, is sought to be avoided and annulled by the wife, although she admits the execution of the mortgage, upon the ground that she executed it and the note which it was given to secure as surety for the husband, the burden of proving that the debt secured by the mortgage was the debt of her husband, and that she was surety in the execution of the instrument, is upon the wife. And, in order to overcome the adverse inferences indulged against her on account of the recitals of the mortgage, the proof should be clear and convincing; and in determining the weight and sufficiency of the evidence it is proper to consider her acts and conduct subsequent to the execution of the mortgage assailed, not as a ratification, but for the purpose of determining what credit or weight, if any, should be given her testimony. And this observation is likewise applicable to the testimony of her husband. *—Gafford v. Speaker,*125 Ala. 498, 27 South. 1003.

The question in this case is: Was the loan made to the wife or to her husband? The wife executed, the mortgage as principal, and renewed the same by a sec*189ond mortgage, ivkick ske executed in tke same capacity. It is time tke loan ivas negotiated by tke kusband; but ke at tke time exhibited tke deeds to tke property, and which skoived the title to be in tke wife, and stated, tkat they wanted tke money to make improvements on tke wife’s land, and to use in tke wife’s millinery business. It also appears tkat tke amount loaned was deposited to tke credit of tke wife alo'ne after tke execution and return of tke mortgage, and tke bulk of same ivas drawn out through checks drawn by tke ivife, and tke signature to ivkick wms tke same as her signature to tke mortgage; and ske admitted signing tke mortgage. It is true tkat a fewr checks ivere signed by tke ivife per her kusband, but if ke was not authorized to do this tke bank would only be liable to her for so muck as ivas paid out upon these unauthorized checks; but this fact did not, of itself, show tkat the loan ivas not made to tke wife. Tke foregoing facts are sworn to both by Wilson and Davis; and, while tke wife denies any connection with tke loan or checks, tke said checks ivere turned over to them, and were not produced, and her claim of not knowing tke purpose of tke mortgages, when signing them, is weakened by tke fact tkat ske was a business woman, and engaged in tke millinery business on her oivn account. It also appears from tke testimony of Reeves tkat when ke ivent to see Mr. and Mrs. Wesley, in an effort to collect tke debt for the bank, neither of them made any suggestion that it was tke husband’s debt, or tkat tke loan- was not made to tke wife. On tke other hand, Reeves says: “I went with Mr. Wesley to kis house to see kis wife, and Mrs. Wesley claimed tkat ske had nothing to -pay tke mortgage with; and I asked Mrs. Wesley what.ske did with tke money ske obtained on this mortgage, and ske stated tkat ske used part of tke money improving tke property *190in Coffee Springs, and used some of it in the millinery business that she had operated in Coffee Springs; and she stated that she was perfectly willing to give the bank a deed to this property in satisfaction of the mortgage.”

I do not think that the complainant has met the burden that the law casts upon her of showing that she signed the mortgage as a mere surety for her husband, and therefore dissent from the holding of the majority of the court.