This cause was previously here on appeal from the decree overruling the separate demurrers of the respondents to the present appellant's bill as then amended. Sheffield Nat. Bank et al. v. Corinth Bank Trust Co., 196 Ala. 275, 72 So. 127. The amended bill was further amended after the affirmance of the decree overruling the demurrers, as will be later stated. The primary ground of complainant's (appellant's) bill, at all stages, has been and is that the appellant was or became a creditor of Mrs. Mary M. Pride, thus, as was the case in Hitt Lumber Co. v. Cullman Coal Co., 76 So. 347,1 constituting the complainant's creditorship of Mrs. Pride an indispensable prerequisite to relief sought by the bill as amended. This condition precedent to the right to the relief sought is not sustained by the evidence.
Mrs. Pride owned the "Pride home place," comprising about 2,100 acres. For the year 1914 she rented this place to her husband, L. T. Pride, for $4,500, taking therefor the rent note reproduced in the opinion on former appeal. Mr. Pride needed funds with which to operate during that year, and at his request Mrs. Pride indorsed her rent note and delivered it to him, with the view to its use by him to borrow money. He negotiated a loan of $7,500 from the appellant. This loan was to Mr. Pride, not to Mrs. Pride. He gave three notes to the appellant, each for $2,500. At the same time he deposited his rent note (payable to Mrs. Pride and indorsed in blank by her) with the appellant as collateral security for the loan thus made to him. Under the evidence there is no doubt of the correctness of this conclusion of fact. Without qualification the cashier of the appellant so testified. The vice president entertained the view that the appellant bought the note, but it is evident from his testimony that his view and statement was only the utterance of an opinion that was opposed to the manifest fact. Mrs. Pride had no representations to appellant; had no negotiations or dealing with the appellant. The loan was, as stated, to Mr. Pride only. Where the loan is to the husband alone, and the effort is to secure the payment (not pay) his debt with the wife's property, neither she nor her property is bound, whatever the form in which the suretyship is cast. Code § 4497. If the rent note had been sold to the appellant, not taken, as it was, as collateral security for Mr. Pride's loan, then the doctrine of First National Bank v. Nelson, 106 Ala. 535, 18 So. 154, and Brooks v. Griel Bros. Co., 179 Ala. 459, 470, 471, 60 So. 387, relied on in the brief for appellant, would be entitled to consideration. The transaction under review in Warren v. Crow, 73 So. 989,2 involved a loan made to both the wife and the husband, thus readily distinguishing that case from the one at bar. Since the wife's rent note was assigned as collateral security for the husband's debt to the appellant, the appellant acquired no right in the premises that in any degree postponed or impaired the wife's rights as landlord.
There is no evidence of any fraud conceived or practiced by Mrs. Pride or the Sheffield National Bank against the appellant within the pertinent statement in Russell v. Peavy, 131 Ala. 563,567, 32 So. 492. Fraud is never presumed. It must be proven. The undisputed evidence is to the effect that Mrs. Pride had no personal connection with the dealings between her husband and the appellant. The transactions between Mrs. Pride and the Sheffield National Bank were not at all shown to be affected with any fraudulent design or effect on the part of either.
It results that the appellant is not a creditor of Mrs. Pride; that it is without right to invoke the court's powers to have the mortgage to the Sheffield National Bank declared a general assignment in virtue of the statute, Code, § 4295. The court below so concluded. Its decree is affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.
1 200 Ala. 415.
2 198 Ala. 670.