74 Ala. 513 | Ala. | 1883
— Notwithstanding the able argument of the counsel for Mrs. Kelly, we are constrained to adhere to the conclusion expressed when this cause was before the court at a former term. The pleadings and the evidence do not authorize a reformation of the conveyance under which she holds the premises sought to be charged with debts contracted by her, as it must be presumed, on the faith and credit of her equitable
2. It is true that there was a line of decisions, of then recent origin, prevailing when this conveyance was executed, and the contracts sought to be enforced were entered into, which would have led to the conclusion, that though the conveyance, by appropriate words, and the words for that purpose generally employed, created an equitable separate estate, that was not its' character in contemplation of law; that it was a statutory separate estate, and the capacity of Mrs. Kelly to contract, or to bind it, was not dependent upon the terms of the conveyance, but upon the statute defining and regulating the separate estates of married women. ’ These decisions were not only in direct antagonism to a series of former decisions which had been acted upon by the profession, and accepted by the community as a correct and conclusive exposition of the law, touching a question of vital importance, but they were anomalous. In all the States in which the common law in reference to the property of married women has been abrogated, either by constitutional or by statutory provisions, and the wife clothed with capacity to hold property owned by her at the time of marriage, or which after marriage she becomes entitled to, so far as we have discovered, the constitutional or statutory provision has not been construed as subverting, or as affecting equitable separate
The correctness of the later decisions, and of the former decisions which they follow, is not questioned; but it is insisted, as the doctrine announced by them was not prevailing when the conveyance was executed and the contracts were made, the validity of each ought not to be determined by them, but by the decisions then regarded as authoritative, which, it must be presumed, were in the contemplation of the parties. This proposition is wholly irreconcilable with the theory, that by mistake of fact any term or limitation was introduced into the conveyance the parties did not intend introducing. It assumes that the conveyance' conforms to the intention of the parties, and was purposely made in view of judicial decisions supposed to support it, as creating a statutory, and not.an equitable estate. If the fact were apparent — if it were not mere matter of presumption — that the conveyance and contracts were made in view of these decisions, all that can be said is, the parties were under a mistake as to the law. They knew the decisions were conflicting; they exercised their own judg-
3. A married woxnan, having an equitable separate estate,
In some of the authorities to which we have referred it is ..said, that the contract creates alien ; and in some, that it creates a charge upon the estate. These expressions, however general, are qualified and limited by the facts of the particular case before the court, and must not be severed from the conclusions reached. When properly read and construed, they were intended only to distinguish the contracts of a f&mm.e covert, from contracts of personal obligation, valid and operative whether there is an estate or specific property on which the court has jurisdiction-to charge them. It is mere misconstruction, against which it is scarcely possible for a court to guard, to read them as intended” to express the proposition, that the contract, of itself, confers upon the creditor any specific or vested right of property in the separate estate, or an ascertained, defined right to charge it, or that the estate is thereby incumbered to any greater extent than the property of a person
It is only by the pursuit of legal remedies a general creditor, or a creditor not having a conventional lien, acquires any vested or specific right in and to the property of the debtor. Until such remedies are pursued, to which the law may attach a lien or charge, the debtor has full dominion over his property, the courts can not disturb. In the exercise of the dominion, if there be no fraud, he may convert one species of property into another, or at pleasure he may alienate, and the courts will not •interfere to restrain him.— Wiggins v. Armstrong, 2 John. Ch. 144; Moran v. Dawes, Hopkins Ch. 365; Adler v. Fenton, 24 How. 407. This is equally true of a married woman having an equitable separate estate. Ownership of it, dominion over it, is not displaced or lessened because she has entered into contracts which, if not performed, a court of equity will charge upon the estate. She may sell it, or she may by exchange convert it into another species of property, without offending any right of the creditor. If the creditor would restrain her in the exercise of the right, he must pursue with diligence the remedies the law appoints.
The equities of general creditors of a living person are in all respects equal; there is no foundation upon which a distinction between them can be rested. They are entitled to like remedies; the consideration of the debts due to them is not more or less valuable and meritorious; and their rights spring from the consideration, — not from the order of time in which the debts may have been contracted. Therefore, a court of equity, in the administration of equitable assets, will generally distribute them equally and pari passu, among all the creditors, “ without any reference to the priority or dignity of the debt; for courts of equity regard all debts in conscience as equal jwre natm-ali, and equally entitled to be paid.” — 1 Story’s Equity, § 554. But, though this is the favorite policy of a
The creditor of a married woman, resorting to a court of equity to charge her equitable separate estate, must, of necessity, in the bill describe the property which it is sought to subject. Ravisies v. Stoddart, 32 Ala. 599. It is upon this property only the decree can operate; for the contract is not of personal obligation, and a decree affecting or binding personally the married woman can not be rendered. In this respect, the suit has some of the characteristics of a proceeding in rem, though in form and essential elements it is a suit inter partes. A lis pendens is created by the institution of the suit, operative against all persons coming in subsequently, by purchase or otherwise. It creates a specific lien, if successfully prosecuted to final decree; the decree taking effect, by relation, from the day of the service of summons to answer. The vigilance of the creditor first instituting' suit, and prosecuting it with diligence, entitles him to priority, of which other creditors, less vigilant, who have “loitered on the way,” have no just reason to complain. The bill of Mrs. Turner having been first filed, and duly prosecuted, entitled her to priority. A specific lien was created by the decree rendered, taking effect,' by relation, from the service of process, of which it would not be equitable to deprive her.
We find no error in the decree of the chancellor, and it must be affirmed.