Meyer & Co. v. Sulzbacher

76 Ala. 120 | Ala. | 1884

SOMEBYILLE, J.

— -The rulings of the court in this case necessarily raise the inquiry as to the validity of the chancery proceedings, by which, in August, 1877, Mrs. Sulzbacher was decreed to he relieved of her disabilities of coverture, under the provisions of section 2731 of the Code (1876). It is urged by the appellants’ counsel, that these proceedings should be adjudged void, for one or more reasons apparent upon their face.

The first objection taken is, that the petition to the chancellor failed to make a ease within his jurisdiction, as conferred by the statute, which gives him, either in term time or in vacation, authority “ to relieve married women of the disabilities of coverture, as to their statutory and other separate estates, so far as to invest them with the right to buy, sell, hold, convey and mortgage real and personal property, and to sue and be sued as femmes sole.” This jurisdiction can be exercised only upon a petition filed by the wife, through her next friend, containing the requisite jurisdictional allegations, the truth of which must be proved as in other chancery cases, or else assented to by the husband in writing. — Code, § 2731. The particular defect suggested in the petition is, that it fails to aver that the wife had any equitable separate estate, which is the kind shown to be involved in this suit. There is.an averment, however, in this petition, that the wife was seized and possessed of certain money and property, at the time of her marriage in 1871, which is alleged to have been “her separate estate under the laws of Alabama,” and that she had also acquired other money and property which she claimed to hold as “ her separate estate.” The prayer of the petition is, that she may be relieved of the disabilities of coverture, “ as to her statutory and other separate estates,” and that she may be invested with “the right to buy, sell, hold, convey and mortgage real and personal property, and to sue and be sued as a femme sole.”

We can entertain no sort of doubt that, under the averments of the petition, the chancellor acquired jurisdiction. In Cohen v. Wollner, 72 Ala. 233, we decided, that the wife’s petition must aver that she has some sort of separate estate, statutory or equitable; and this being a jurisdictional allegation, the omission of it would render the entire proceedings void. In that case, there was no averment that the petitioner owned any kind of property whatever — either a statutory or an equitable separate estate, one of which it must necessarily have been. In the present case, there is no such defect. There is an averment of the wife’s ownership of property, which is characterized to be “ her separate estate under the laws of Alabama,” and also of other property, designated simply as “her separate estate.” Whether either of these averments was the subject of criticism, as a mere matter of pleading, we need not inquire. That would have been a proper question, if the petition had been assailed on direct appeal; and upon its consideration, all intendments would have been made against the pleader. But, upon a collateral attack, like the present, after the petition has matured into a decree, under which rights of property have attached, a different rule is held to prevail. “Then, every reasonable intendment, in the construction of the language of the petition, must be in favor of the validity of the paper. Under a.different rule, designing persons might withhold objections for amendable defects, until after the proceedings had terminated, and rights had attached, and then vitiate the whole proceeding, thus converting a court of justice into a snare.” King v. Kent, 29 Ala. 542; Bibb v. Bishop Cobbs Orphans’ Home, 61 Ala. 326. All mere questions of pleading, which could have been raised by demurrer, or other direct mode of attack, must be considered as conclusively adjudicated; and a liberal construction, if necessary, will be placed upon the language of the petition, in order to maintain the validity of the judgment which has been pronounced upon it by a court of competent jurisdiction.— Wright v. Ware, 50 Ala. 549; King v. Bolling, 75 Ala. 306.

A correct application of these well-settled principles forbids that we should hold these proceedings to be void, on account of this alleged defect of averment, and in a case where the record is made an object of collateral assailment.

It is further contended, that the decree of the chancellor is void, because it goes further than the statute authorizes, by conferring upon the petitioner, not only the appropriate “ right to buy, hold, sell, convey and mortgage” her separate estate, with the right “ to sue and be sued as a femme sole,” but also the inappropriate power “ to contract and be contracted with,” of which the statute makes no designation. In Hatcher v. Higgs, decided at the present term, we held, that the attempt to confer the general power “to contract and be contracted with,” in a case of this character, was unavailing, and that the decree was void, at least to that extent. This is manifest, because the chancellor has no jurisdiction, which can alone be derived from the statute, to confer such a right upon a married woman, under any possible state of circumstances. — Dreyfus v. Wolffe, 65 Ala. 496. As said in Ashford v. Watkins, 70 Ala. 156, 162, “a general capacity to contract is carefully withheld.” In the latter case, a decree was held void, which attempted to confer upon a married woman the power to mortgage a particular piece of property, in order to obtain an addition to a stock of merchandise with which she was carrying on the business of a sole trader — “ a capacity,” it was said, “ she has not at common law, or under the statute creating separate estates.” The underlying principle of that decision is, that the powers authorized by the statute to be conferred must be all conferred, or withheld together, as an entirety, and that this jurisdiction can not be exercised by piece-meal. There are manifest objections to placing any other construction upon this statute, which readily suggest themselves without presentation by argument. The decree in this case is not subject to such a criticism. It confers upon the petitioner each and every power which is authorized to be conferred by law. The power conferred is commensurate with the statute creating it, and is entire and not fractional. The additional right of contracting and being contracted with, which was not prayed for in the petition, and which the chancellor had no power to grant, being void, must be deemed mere surplusage, and can not be held to affect that portion of the decree which would be confessedly good without it. There is no sufficient reason why the maxim should not apply, Utile cler inutile non vitiatur — the useful is not vitiated by the useless.— Wolffe v. Eberlein, 74 Ala. 99, 106-107 ; Freeman on Judg. (3d Ed.),§ 135, and note 1; Chase v. Christianson, 41 Cal. 252.

The wife was clearly the only proper party to the present claim suit, which was instituted in her name alone. The decree, removing her disabilities of coverture, expressly authorized her “ to sue and be sued as a femme sole,” and this right was conferred pursuant to the very words of the statute. — Code, 1876, § 2731; Warren v. Wagner, 75 Ala.; Cook v. Meyer Bros., 73 Ala. 580, 586.

"We do not feel authorized to pronounce the sale of the goods in controversy, made by Sulzbacher to his wife, to be fraudulent. There are many badges of fraud in the case, with circumstances of suspicion and bad faith on the part of the grantor; but the evidence fails to implicate the grantee in any of these transactions, or to charge her with notice of the alleged fraudulent intention of the grantor. Moreover, the sale of the goods being shown to be in absolute payment of a debt, proved to bé due by Sulzbacher to his wife, and the price paid being fair and adequate; and no interest being reserved by the grantor, the preference was one authorized by law, and the fraudulent intent of one or both parties would not vitiate the transaction, because, the act of preference itself being legal, fraud without damage would give no right of action. This is the rule announced in Hodges Bros. v. Coleman & Carroll, at the present term; ante, p. 103. In that case we said, “ These concurrent facts absolutely rebut all inferences that might be drawn from attendant badges of fraud, and impart validity to the conveyance as an allowable preference of the particular creditor.”

We find no error in the record, and the judgment of the City Court is affirmed.