74 Tenn. 312 | Tenn. | 1880
delivered the opinion of the court.
On the 27th of January, 1847, a marriage took place in Mississippi between William N. Bilbo and Martha W. Foot, where said Martha then resided. She was owner at the marriage of a considerable estate, consisting of land, slaves, money in the hands of her guardian, notes and other personalty. On the day of the marriage a paper was drawn up by said William N., purporting to be an indenture (but which was signed by William N. alone) between the said W. N. and the said Martha, reciting that the latter was owner of the property aforesaid, and that a marriage was anticipated between said parties. It provides, that in case the marriage takes place, the said William N. agrees he shall not have any title, interest' or estate in said property, but that the same, and the profits, “ shall be and remain the sole and exclusive estate of
This deed is proved by the relatives of Mrs. Bilbo to have been accepted by her, though the form and manner of that acceptance is not shown. This deed
Before, or shortly after leaving Mississippi, they had sold out and reduced to money and notes all of the property owned by Mrs. Bilbo. W. 1ST. Bilbo, at the marriage, owned no property. On the 27th of May, 1857, John Sigler and wife sold and conveyed to “ Martha W. Bilbo, her heirs and assigns forever,” the land in controversy, partly for cash and partly on credit, for which the notes of Bilbo and wife were given. The whole was paid, from what funds does not otherwise appear than the fact that W. if. Bilbo-is not shown to have had any property, and Mrs. Bilbo is not shown to have had any except the proceeds of her Mississippi estate, real and personal, and
The transaction was, in effect, a mortgage to secure the said notes in the hands of purchasers • of them for value. The notes on ' which the bills are filed to subject the land, were bought by the complainants’ testator before due, the money being paid to. W. N. Bilbo. Neither Wheless nor the purchasers of these' notes (Childress, who purchased two of them, and Wat
Before the filing of these bills, as already stated, said W. 1ST. Bilbo had died; his wife survived him and was still alive, and there were three living children of the marriage; the wife and Wheless and the children were made defendants to the bills. Looking at these cases as standing simply upon the appearance presented by the deed from the Siglers to Mrs. Bilbo, and her and her husband’s transactions with Wheless, the consideration advanced to the husband would be sufficient to sustain the mortgage as against her. It would be the ordinary case of the mortgage by the wife of her land to secure the husband’s debt: McFerrin v. White and Wife, 6 Cold., 499.
It is urged, however, for the children of Mrs. Bilbo, that is not the case now before the court. That by the law of Mississippi, as it existed, at the time of their mother’s marriage, her estate of every description, upon her marriage, became her separate estate, and that however its nature .may. have been changed as from real into personal, from slaves and notes into
Again, it is said for the children, that the so-called antenuptial settlement makes the Mississippi property, as matter of contract, the separate estate of their mother for life, with remainder to them, and that even if their mother changed the nature of her own right in that portion of the property vested in the Sigler land, that she did not thus affect their rights, and that they still remain.
This brings us to consider the nature and effect of the paper drawn up and- signed by their father, but not signed by the mother.
This is a very different case from one where the husband settles properly upon- his wife and undertakes to impose upon it limitations, which he may well do, being its owner. This, on the contrary, is on the part of the contemplated husband a mere and pure renunciation of his marital rights, and an undertaking on his part to limit and dispose of the estate of his contemplated wife, and is wholly without consideration, unless the bestowing of himself upon her may warrant so large an assumption. The failure to sign the instrument by the expected wife is wholly unaccounted for. But it is said her acceptance of the instrument binds her as effectually as if she had signed it; that the covenants in an indenture bind the accepting party who does not sign, as effectually as the conveying words do the party who does sign. This is all true enough,
The simple consideration of marriage has never been held to give effect to such disposition, in the absence of any words of alienation by the party to be affected by the instrument. In the words of the chancellor, ‘‘the instrument is clearly binding upon W. A. Bilbo only, and is utterly nugatory for any other purpose.” This, in effect, disposes of the case. The children took no rights under the so-called ante-nuptial contract. The Sigler property belonged to Mrs. Bilbo; she mortgaged it to secure these claims, and it must be subjected to them.
3Nio question in this aspect of the case can arise as whether, the complainants were bona fide purchasers without notice, as there was nothing to take notice of. "When they came -to the knowledge of the defeasance,’ they had a right to avail themselves of it to make the deed a mortgage, as much as a man would to avail himself of a mine unexpectedly developed on land that he had bought without an idea of its existence, or as a purchaser of notes would of a lien expressly retained on land for their security and of which lie had not heard at the date of his purchase.
If the determination of the case rested alone upon this last ground, it might be necessary to examine with some particularity the pleadings to see whether the complainants have placed themselves there properly in the attitude of bona fide purchasers without notice. They have certainly done so in the proof. They are ■complainants, and having stated a prima facie case,
The decree of the chancellor will be affirmed with costs, and the case retained here for further proceedings.
It was remarked in argument that Childress and Watkins being only assignees of the notes, could not represent the vendor or assert any right of their own against the land. This would be true in an ordinary case under the decision in Green v. Demoss, 10 Hum., 371, and cases following it, but independent of the fact already considered, that there was in truth a mortgage, to the benefit of which they were entitled when discovered, this is not the ordinary* case of assignees of vendee’s notes. Wheless was but a sham, and Childress and Watkins are true payees and vendees of Bilbo and wife. It is as if they conveyed the land directly to Childress and Watkins. The deed, though, (being made to secure the loan of money), would have •been held a mortgage without a formal' or other de-feasance.