56 Ala. 468 | Ala. | 1876
The general rule of law is, that a married woman can make no contract which will bind her personally, and can make no pledge of her property which will operate as a valid mortgage-security for a debt, whether contracted by another, or attempted to be contracted by herself. — Marquis v. Gibson, 29 Ala. 668; Childress v. Mann, 33 Ala. 206; Bibb v. Pope, 43 Ala. 190; Davidson v. Lanier, 51 Ala. 318. It follows from this principle, that when a married woman is sought to be held personally accountable on her alleged contracts, it is necessary to show that she does not rest under
Married women, in this State, may be relieved of the disabilities of coverture in different ways, and the relief may be more or less extensive. One mode of relief, formerly very much practiced, was by special statutory enactment. Such statutes are private laws, and the courts do not take judicial notice of them. They must be proved. — Sedgw. on Stat. 94. We are referred to an act to constitute certain named persons free-dealers, approved December 31, 1868 (Pamphlet Acts, 540), under which it is claimed that Mrs. McDonald was made a free-dealer, with power to sue and be sued, contract and be contracted with, in her own name. This statute, it is contended, takes this case without the operation of the general rule, and vindicates the correctness of the chancellor’s decree. This position would probably be correct, if the statute in question was before the chancellor, and properly before him. For appellee it is contended, that under section 2698 of the Revised Code, the statute in question could have been “ given in evidence without being specially pleadedand therefore we must consider it on this appeal. It is, perhaps, a sufficient answer to this to say, that the record does not inform us that it was given in evidence. Under the rules, the chancellor was not allowed to consider such evidence, unless it had been offered and noted by the register. — Rev. Code, § 3484; Rule 77, Revised Rules of Chancery Practice.
We prefer, however, to place our decision on a broader ground. Section 2698 of the Revised Code is found in Part 3, Title 1, which relates mainly to proceedings in civil actions in courts of common law. True, some of the sections embraced in that title do relate to all courts; but they are exceptional in their character, and do not impair the force of the general rule. — See Forrester v. Forrester, 35 Ala. 594; Ex parte Kirtland, 49 Ala. 403. Bills in chancery must set forth, not the evidence, but every material averment of fact necessary to complainant’s right of recovery. So complete must be the averments of fact, that on demurrer, or decree pro confesso, the court can, without evidence, be able to perceive and affirm that complainant is entitled to the relief prayed. Relief can only be granted on allegations and proof; and the latter will never be allowed to supply omissions or defects in the former. Allegations, admitted or proved, are the only premises which will uphold a chancery decree. We do not think section 2698 of the Revised Code is applicable to either the letter or spirit of chancery pro
The averments in the present bill, which, it is contended, take this case out of the operation of the general disability to contract under which married women labor, are but statements of legal conclusions — not averments of fact. The decree pro confesso was an admission only of the facts that were well pleaded. It could not aid or supplement defective averments. The bill should have shown how Mrs. McDonald was made capable of contracting; and, failing to do so, it is demurrable. — See Cockrell v. Gurley, 26 Ala. 405; Gunn v. Howell, 27 Ala. 663. This error, however, may.be cured by-amendment ; and this would, doubtless, have been done, if the objection had been raised in the court below.
The decree of the chancellor is reversed, and the cause remanded.