Knight v. Coleman

117 Ala. 266 | Ala. | 1897

COLEMAN, J.

The appellant, as the administrator of A. G. Smith, filed his bill in the chancery court, for the foreclosure of a mortgage averred to have been executed by appellee to complainant’s intestate. The respondent rested her defense upon two grounds : First, that she was a married woman, and a'minor at the time of the signing of the mortgage ; and second, that there was no consideration for the mortgage. Upon the question of minority the evidence is conflicting, and we can not say that respondent has reasonably established her minority at the time of the execution of the mortgage. We are of opinion, however, that this question may be disposed of without reference to the controverted fact. Though under eighteen years of age when married, she was about twenty years of age at the time of the execution of the mortgage. It is also clear that her husband had several years prior to that time abandoned her. Code of 1886, § 2348.

On February 21st, 1893, prior to the execution of the mortgage, it was enacted as follows : ‘-'That the marriage of any female in this State, under twenty-one years of age and over the age of eighteen years, shall have effect at once to remove all her disabilities of minority, and she shall have the same legal rights and abilities that married women have over twenty-one years of age.”

Appellee’s contention is, that the act only operates upon such women as may marry after they have attained the age of eighteen, and if married before that age, their disabilities continue throughout minority. The act is remedial in its nature and should be construed to effect the manifest purpose of the legislature. The purpose of the legislature was not to discriminate between women married under eighteen years of age and those marrying after they had attained the age of eighteen. The discrimination was against the acts and contracts of married women, done or entered into before and after they became eighteen years of age. The disabilities of minority are removed by the statute as to contracts made by a married woman after she had attained to such age. Any other construction would be unreasonable .

The testimony of the respondent as to statements and declarations of A. G. Smith, deceased, were illegal and incompetent. The only testimony assailing the consideration of the mortgage, is that of the declarations of the deceased, and it is of such a character as not to be entitled to much consideration.

It is evident that the lot was purchased and the building constructed with money furnished by the mortgagee, and the mortgage refers to the consideration as a loan. The mortgagee also insured the property for his own protection. We are of opinion the complainant was entitled to a decree of • foreclosure, and a decree to that effect will be here rendered. The cause will be remanded, for a reference to the register to ascertain and report the amount due on the mortgage, and for an "order of sale, if such order becomes necessary.

Reversed, rendered and remanded.