47 Ala. 456 | Ala. | 1872
The appellee, a married woman, through her brother as her agent, in 1861 purchased the premises described in appellant’s bill of complaint, lying in the county of Madison, for the sum of $1,800, and the same was conveyed to her by the name of Sarah A. Wade, the wife of Littleberry Wade.
The appellant states in his said bill, that in 1864 he purchased said premises from the appellee for the sum of $2,800, the husband of the appellee being then alive, and received from her a deed for the same, in her own name, her husband not being a party thereto, and went into “the possession -of said premises, and still has the possession thereof.
In 1867 the appellee, her husband then being dead, commenced her action under the Revised Code, in the nature of an action of ejectment, against the complainant, in the circuit court of said county, to recover the possession of said premises; thereupon, in 1868, the said action being then pending and undetermined, the complainant filed his bill in the chancery court of said county, to enjoin said appellee from the further prosecution of her said action, and prayed that she might be decreed specifically to execute said contract of sale, and required to convey said premises to him, and that the legal title might be divested out of appellee and vested in complainant, and for general relief.
The complainant in his bill, among other things, states that in 1839, the appellee and said Littleberry Wade, in contemplation of marriage, made an ante-nuptial agreement and settlement, by which all the estate and properly of said appellee, with what, she might receive from her
íhe bill further states that complainant paid said $2,800 for said premises in Confederate treasury notes; that appellee was willing to accept the same; that she declared she had confidence in that kind of money, and was perfectly willing to receive it in payment for said land; that said Confederate treasury notes were then greatly depreciated, yet, depreciated as they were, $2,800 in such notes was a full and fair compensation for said land; that appellee said she preferred said notes to any other money than gold.
The appellee’s deed for said land to complainant is mead
The answer of the appellee was required to be, and is on oath, and very fully denies all the alleged equities of the bill. The following brief synopsis is all that is deemed necessary to be stated for the purposes of this opinion:
It admits the marriage settlement; that the trustee therein named had been dead many years; that several successive trustees had been appointed, but that the last one appointed died some years before; that she had been permitted to have the possession of and use of the trust property, and that the lands purchased and sold as stated to the complainant were pai. 1 for out of the income and profits of the said trust property; that said lands were purchased for her by her brother, as her agent, and the deed was made to her in her own name. She admits the sale to complainant, but says it was made by her husband, and not by herself, and that she unwillingly made the deed to complainant, by the request of her husband, to whom the Confederate treasury-notes were paid. Denies that she was willing the lands should be sold for Confederate treasury-notes, or that she said she had confidence in that kind of money, or that she had rather have it than any other money except gold, but alleges that complainant said it was better than any other money than gold; and that complainant persuaded her husband to sell said lands for that
The complainant and appellee were examined as witnesses, each in Ms ownbehalf, and a large number of other witnesses were also examined by both parties. The deposition of complainant sustains the bill, and that of appellee sustains her answer. But little of the evidence of the other witnesses is pertinent to the case. One of the witnesses of the complainant, said Lazarus H. Vann, says he was present when the said deed was executed, but not when the contract of sale was made, and that appellee took the Confederate money without objection, and said she preferred Confederate money to greenbacks. Another of complainant’s witnesses says he was present at the same time, the witness Glass, and that appellee said nothing about the money, nor her preference for Confederate
On the hearing, the chancellor dismissed the complainant’s bill. He appeals to this court, and assigns said decree dismissing said bill for error, and that the chancellor erred in refusing to allow complainant compensation for the improvements put upon the land, &c.
We can not yield our assent to the correctness of this proposition. This land was purchased by appellee in 1861, and it was conveyed to her by her name of Sarah A. Wade, wife of Littleberry Wade. This land became her separate estate by force of section 2371 of the Revised Code, and not by the common law. This section is in the following words : “ All property of the wife, held by her previous to the marriage, or which she may become entitled, after the marriage, in any maimer, is the separate estate of the wife, and is not subject to pay the debts of the husband.” The deed, by which this land was conveyed to the appellee, does not convey it to her as her separate estate. Independent of said section of the Revised Code, it would have
The power to sell and convey the real estate of a married woman, held to her separate use, whether by the common law or the Bevised Code, is a special statutory power, unless the will, deed, or other instrument by which the separate estate is created otherwise provides, and this power must be strictly complied with, as to all matters that are of the essence or substance of the power. Courts of equity will rarely interpose to correct, aid, or carry into effect the defective execution of such powers. This court has held, that a court of equity can not relieve against the defective execution of a power created by law; as distinguished from a power created by the act of the parties. McBryde’s Heirs v. Wilkinson, 29 Ala. 662; Waddell v. Weaver’s Adm’rs and Heirs, 42 Ala. 293. "We are not willing to go quite to this extent, though, as a general proposition, it may be admitted to be correct; yet, we think a court of equity, where its aid might seem to be necessary, to prevent fraud, would struggle hard to find an exception to this general rule. Judge Story, in his 1st volume of Equity Jurisprudence, § 90, says: “ But, in eases of defective execution of powers, we are carefully to distinguish between powers which are created by private parties, and those which are specially created by statute ; the latter are construed with more strictness; and whatever formalities are required by the statute, must be punctually complied with, otherwise, the defect can not be helped, or, at least,
Whatever may be said on this subject, the case in hand is not one that can be helped, aided or carried into effect. It is a case that does not commend itself to the conscience of the court. It not only fails to conform, in any respect, with the requirements of the statute, but is also repugnant to, and in conflict with, the plainest principles of justice and equity. Real estate, worth eighteen hundred dollars, was purchased for a consideration wholly inadequate. The currency received, if not utterly worthless, to say the most of it, was not worth more than ten cents in the dollar ; besides, it was a currency that it was against public policy to permit it to be used at all; a currency that was not only illegal in itself, but was, also, issued by a government in open rebellion against the United States; a currency issued to sustain a government instituted and organized for an unlawful purpose — the destruction and overthrow of the legitimate constitution and laws, both of this State and of the United States.
If the complainant is entitled to compensation for improvements in this case, he can have his remedy on the trial of the action at law, by making the suggestion authorized by section 2602, Revised Code, and then the question as to improvements can be determined by the jury. Upon the whole case, we think the chancellor committed no error in dismissing the complainant’s bill. His decree is, therefore, affirmed, at the appellant’s costs.