43 Ala. 190 | Ala. | 1869
On the 5th April, 1866, Augustus Pope,
The only question discussed at the bar was, whether Mrs. Pope was bound by said mortgage, and whether her statutory separate estate was liable to be sold under it, to pay her husband’s debt, due by said bill of exchange to said
The Code of 1852, which is copied into the Revised Code of this State, and which latter Code, with certain modifications, is now the law that must govern the judgment of this tribunal, declares that “all the property of the wife, held by her previous to the marriage, or which she may become entitled to after the marriage, in any manner, is the separate estate of the wife, and is not subject to the payment of the debts of her husband.” Another section of the same law vests in the husband, as the trustee of the wife, her separate estate, and gives him the control and disposition of the “ rents, income and profits thereof, but such rents, income and profits are not subject to the payment of the debts of the husband.”—Revised Code, §§ 2371, 2372; Patterson v. Flanagan, 37 Ala. 513.
The bill in this case is filed by the wife, Mrs. Pope, to prevent the sale of her separate estate for the payment of the debt of her husband, Augustus Pope — a thing which the statute declares shall not be done. If, then, this' sale is permitted, the whole purpose of the law, so far as it protects the wife’s separate estate, will be defeated ; for when the principle is once admitted that this may be done, methods and ways will soon be discovered to carry it into unlimited effect. This can not be allowed. It would be a violation of law by indirection; and what it is illegal to do directly, is also illegal if done indirectly. Eor it is the thing that is forbidden, and not the manner of doing it. In whatever form, then, whether of law or in equity, this is attempted, the power to do it is denied by the express words of the statute, by the whole scope of its intent, and by the character of the evil sought to be remedied.
It was very earnestly contended at the bar, by the learned counsel for the appellant, that the wife had the power to sell, and, therefore, she hadthe power to mortgage her estate for the payment of the husband’s debts, because the p'ower to sell was the greater power, and, as the greater always contains the less, the right to mortgage, because it was a form of sale, followed the power to sell, as a neces
A mortgage within these limits would be almost a futile act; and such is not the mortgage here insisted on.—Revised Code, §§ 2373, 2374, 2376; Alexander v. Saulsberry, 37 Ala. 375; Warfield v. Ravisies and Wife, 38 Ala. 518.
It is further urged against the validity of this mortgage, that it is a fraud upon Mrs. Pope, and void for that reason. Her husband is her trustee ; the mortgage could not have been accomplished without his concurrence; that its execution jeopardized the trust estate for the benefit of the trustee, and not for her benefit; and that if it is enforced it will utterly ruin the trust estate, solely for the trustee’s individual profit. Bibb knew this, or was bound to know it, and cannot be excused if he did not. And to permit him to take advantage of it would be to aid him and the trustee to profit by their own injurious acts. And although the transaction might not be strictly and technically a
The decree of the chancellor in the court below being in conformity with these views, must be, and is hereby affirmed. It is further ordered that the appellant, J. DuBose Bibb, and his securities on his appeal bond, pay the costs.