Houston v. Williamson

81 Ala. 482 | Ala. | 1886

CLOPTON, J.

— The appellee files this bill to foreclose a mortgage on an undivided half interest in lands, executed by Bobert H. Harris and his wife, Mary B. Harris, to secure notes made by both. Bobert Harris having died, his administrator and heirs are made parties. Mrs. Harris demurred to the bill, the cause of demurrer assigned being, that it shows she was a married woman at the time of the execution of the mortgage, and fails to show that she had an estate which she had capacity to convey or charge. It avers, that the “ mortgagors were in possession of, and seized in fee of said mortgaged premises,” at the time of its execution — a substantial averment of joint possession and joint seizure. It is tantamount to an allegation that the mortgagors owned tbe premises jointly, each entitled to a moiety, and that the wife’s moiety is her statutory separate estate, and must be so construed on demurrer.— Whitlow v. Echols, 78 Ala. 206; Walthall v. Goree, 36 Ala. 728.

There being two kinds of separate estates — one which the wife has capacity to charge, and not the other — the rule of pleading, is that a bill, which seeks to foreclose a mortgage executed by a married woman, must show, with clearness and accuracy, the character of her estate, and her capacity to charge or convey the property ; otherwise, the complainant shows no title to relief. —Sprague v. Shields, 61 Ala. 428 ; McDonald v. Mo. L. Ins. Co., 56 Ala. 468. On the allegations of the bill, as they now stand, no decree could be rendered foreclosing the mortgage as to Mrs. Harris’ undivided moiety; and as the averments of the bill are insufficient to authorize its enforcement as to her interest, it may be conceded, that had the demurrer been limited to this aspect of the bill, it should have been sustained. But the demurrer goes to the entire bill. Complainant is entitled to foreclosure as to the husband’s moiety, and having joined in the execution of the mortgage, the wife is a proper party, when it is desired to bar her rights as such by decree of foreclosure. The demurrer going to the entire bill, and being good as to a part only, was properly overruled. Burhe v. Roper, 79 Ala. 138. The assignments of error relating to the demurrer of the administrator, are not urged.

Affirmed.