51 So. 785 | Ala. | 1910
— The bill by the appellee seeks to foreclose a mortgage, executed on January 4, 1908, by appellant M. A. Evans and her husband, one of the other appellants, and also prays that a mortgage executed by said respondents M. A. and B. C. J. Evans, on November 14, 1907, to the Citizens’ Bank of Geneva, another respondent, be declared null and void as to the land conveyed by the mortgage to complainant, on the
The contention of the appellant is that no one can raise the point of the invalidity of a mortgage by a married woman, on the ground stated, except herself. Our statute does not merely confer on the wife the right to plead her coverture to such conveyances, but provides that “the wife shall not, directly, or indirectly, become the surety for the husband.”- — Code 1907, § 4497. If she is absolutely prohibited from making such an instrument, it necessarily follows that any attempt to do so is not merely voidable, but void. If so, it is difficult to see how her failure to take any steps to set aside the instrument, or even her ratification of it, could .rise above the instrument itself and impart validity to it. This court has frequently declared all such attempts to be void. They were so declared, under the former statute, in the case of Lansden v. Boone, 90 Ala. 446, 8 South. 65, in favor of the heirs of the wife; the court saying: “To require them.to show in their bill that the debt has been paid, or to aver a willingness to pay it, would be, in effect, to give validity to a mortgage of the wife’s land, executed to secure the husband’s debt, in the teeth of the very numerous decisions of this court * * to the effect that such instruments are absolutely void as conveyances of the wife’s land.” In a later case, when it was first before this court, it was declared that the legal title passed by such mortgage (Richardson v. Stephens, 114 Ala. 238, 21 South. 949), leaving the wife only an equity; but on the second appeal that expression was corrected, and the court de
The case of Scott v. Tual 115 Ala. 529, 22 South. 417, is based upon the principles of the commercial law with regard to negotiable instruments, and is not applicable to the case now under consideration. Besides the fact that the case of Johnson v. Jouchert, 124 Ind. 105, 24 N. E. 580, 8 L. R. A. 795, is based on a statute declaring the contract “void as to her,” its arguments are not sufficient to induce this court to adopt its conclusions, contrary to our own policy, as shown in our statutes and decisions.
Moreover the execution of the mortgage to the complainant’s assignor was a repudiation of the previous mortgage. It conveys the property with covenants of warranty as to the title and against incumbrances. The complainant, through its assignor being brought into the privity with M. A. Evans, by receiving such deed from her, is entitled to all the interest which she had the power to convey in said land, and for the protection of its title has the right to raise the question of the invalidity of the previous mortgage, and to have the same declared in this proceeding, in order that, in the foreclosure sale, the entire land may be subjected to the mortgage. — Story’s Eq. PL (10th Ed.) § 193, and note “a,” on page 194; 1 Jones on Mortgages (6th Ed.) § 1441; Well's, Adm'r, v. Amer. Mortgage Co., 109 Ala. 431, 440, 20 South. 136; Foster v. Johnson, 44 Minn. 290, 292, 46 N. W. 350; First Nat. Bank v. Salem Capital F. M. Co., (C. C.) 31 Fed. 580, 593.
Even as to the statute of limitations, which is a personal defense, which may be waived by the original
We hold that the mortgage of M. A. Evans to the Citizens’ Bank, if made as alleged, as the surety for her husband’s debt, was absolutely void, and conveyed no property, title, or interest to said mortgagee, and the junior mortgagee has a right to have it declared void, in the interest of his title, to subject the land to the payment of his mortgage, free of any prior incumbrance. There was no error in overruling the demurrers to the bill.
The decree of the court is affirmed.
Affirmed.