Lewis v. Montgomery Mutual Building & Loan Ass'n, 70 Ala. 276

Lewis v. Montgomery Mutual Building & Loan Ass'n

70 Ala. 276 | Ala. | 1881

BRICKELL, C. J.

-The object and purpose of the bill is twofold : first, the cancellation of the mortgage executed by Mrs. Lewis and her husband to the Building and Loan Association; second, to enforce a lien on the lands for the payment of the note given by Cox in part of the purchase-money, which, it is claimed, was not paid or extinguished by the transactions between him and the husband, but was surrendered by the husband in violation of his duty, and in excess of his authority, as trustee of the wife’s statutory separate estate.

In either aspect of the case, relief is claimed, and can be granted, only upon the ground that the lands, as between the parties, are the statutory separate estate of the wife. The bill is rather vague and indefinite in its averments, but may be regarded as averring that the lands in controversy form part of a larger tract, which were purchased by the husband and Elynn from Metcalf, the husband contracting for the wife. It. is averred that one-tliird of the purchase-money was paid in cash, Mrs. Lewis’ father furnishing the money as an advancement to *283her. For the remainder of the purchase-money, Lewis and Flynn made their promissory notes, and Metcalf executed a bond with a covenant for the'making of title to Mrs. Lewis and Flynn, when the notes were paid.

1. There may be no doubt that a resulting trust, in favor of Mrs. Lewis, was created by the payment by her father of one-third of the purchase-money, for and as an advancement to her. The trust extended to the whole, and not to a part of-the tract of land; and upon the final payment of the purchase-money, a court of equity would have specifically enforced it. 1 Lead. Eq. Oases, 339. And the trust extended to the inchoate equity arising from the contract of purchase, as it would have extended to the legal estate, when the contract was fully performed.—Bogert v. Perry, 17 Johns. 351; Brothers v. Porter, 6 B. Mon. 106. The mortgage to the Building and Loan Association, so far as it may operate upon, or affect this interest of Mrs. Lewis, is void ; and upon a proper application, a court of equity would remove it as an incumbrance on her estate. Chapman v. Abrams, 61 Ala. 108; Gilbert v. Dupree, 63 Ala. 331. It is not tlie right of Mrs. Lewis in this aspect, the bill seeks to enforce, and further consideration of it is unnecessary.

2. A distinct averment, upon which the right to relief is rested, is, that tire covenant, in Metcalf’s bond for title was for the making of title to Mrs. Lewis. If this averment was proved, it may be the inchoate equity, arising from the contract of purchase, was vested in her, and was her statutory separate estate. The averment is not admitted by the. answer, and the evidence is conclusive that the bond for title, which has been lost, contained no such covenant. -The covenant it contained was for the making of title to the husband and to Flynn, who had given the notes for the unpaid purchase-money. This variance between the allegations and evidence would, probably, be fatal to the claim for relief, independent of all other considerations. It is a rule, both in equity and a.t law, that the allegata and probata must correspond. No matter how just the demand which the complainant may make out by proof, if it does not harmonize with the allegations of the bill, relief can not be granted.—1 Brick. Dig. 713, § 1528.

3. But, if this consideration was waived, we can not doubt the bill was properly dismissed. The title asserted, and the only title (except a resulting trust, which we have previously stated was created) Mrs. Lewis could assert, as derived from the original purchase of the lands, as that purchase is shown to have been made, must be derived from the fact, that for her the husband made the purchase, intending to pay the notes which bound him personally, and, when they were paid, to take title to himself as her trustee, clothing her with the beneficial *284estate. This was merely voluntary on the part of the husband, resting wholly in intention, revocable by him at will; and the intention was abandoned, as to the lands in controversy, when he made sale of them to Cox, and caused Metcalf to convey to him the legal estate in performance of the covenants of the bond for title.—Forward v. Armstead, 12 Ala. 124; Evans v. Battle, 19 Ala. 398. So long as the title or right of Mrs. Lewis to the lands, dependent upon this intention of the husband, remained without a declaration in writing of the intention — so long as it may be said to have been merely executory —it was incapable of enforcement in any court, or of being aided in equity.—1 Lead. Cases, 420. It rested only in the generosity of the husband, whether it would be executed or not. When he made the sale to Cox, and caused a conveyance to be made to him, he was disabled from executing his intended purpose.

4. No right to relief is based upon the conveyance executed by Cox to Mrs. Lewis. By the terms of that conveyance, Mrs. Lewis was bound to pay the debt of Cox to the Building and Loan Association, and to surrender or protect him against payment of the note he had given for the unpaid purchase-money. The acceptance of such a deed, containing a statement that the grantee is to pay off incumbrances, or is to perform other acts for the grantor, binds the grantee as effectually as though the deed was inter partes, and had been executed by both grantor and grantee.—Trotter v. Hughes, 2 Kernan, 74. We do not mean, of course, that it bound Mrs. Lewis personally; for her coverture incapacitated her from incurring personal obligations or liabilities. The land is bound, and, before she could claim title, the conditions of the deed must have been performed. Patterson v. Robinson, 25 Penn. St. 81; Marks v. Cowles, 53 Ala. 499.

The decree of the chancellor is affirmed.

Stone, L, not sitting, having been of counsel.