Murphy v. Green

120 Ala. 112 | Ala. | 1897

Lead Opinion

McCLELLAN, J.

The original deed from Mrs. Travis to complainant, though void as a conveyance, was valid as a contract to convey, having been signed by her with the assent and concurrence of her husband thereon expressed in writing. Moreover, complainant paid the purchase money in full, thus perfecting his equity, and has been in the actual open and notorious possession under a claim of ownership and title since July 15th, 1892. This possession was notice to the respondent Murphy of complainant’s perfect equity from the time of its inception, and hence he acquired no standing as a bona fide purchaser for value upon the fact of his levy on the land as the property of Mrs. Travis in July, 1895, followed up by his purchase at a sale thereunder in August of that year, even had he not had actual notice of complainant’s claim, interest and right prior to such sale but subsequent to the levy. The second deed executed by Mrs. Travis and her husband to, cure the defect in the first put the legal title in the complainant by relation as from the 15th da^ of July, 1892, so far as lienors and purchasers who acquired their liens dr purchased with notice of complainant’s equity are concerned ; and it follows that, as against Murphy, he has been since July,. 1892, and is now, for all the purposes of the case as here presented, invested 'with the, legal title to the land in controversy. But the valid deed from Mrs. Travis and her husband bears date as of August, 1895, subsequent to the levy of Murphy’s execution, and of consequence the sheriff’s deed to him, reciting the sale and purchase by him under that execution, would upon the face of the instruments vest title in him as against said deed of Mrs. Travis and her husband. The sheriff’s deed, therefore, is a cloud upon the complainant’s title, and the bill before us is well filled to remove it. The decree of the chancellor overruling the demurrers to it must be affirmed.

Affirmed.

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Rehearing

On Rehearing.

In response to the argument in support of the application for a rehearing, we call attention to the fact that Blythe v. Dargin — 68 Ala. 370 — and other cases in that line of authority were decided with reference to statutes as to the rights and powers of married women existing prior to the act of February 28, 1887. Under those statutes the wife had no power to enter into a contract for the conveyance of her land even with the assent and concurrence of her husband expressed in writing. Under the act of 1887, now forming sections 2341-2351 of the Code, she has that power; and the cases referred to, holding, as they do, that an instrument in form a deed and intended to operate as a conveyance, signed by the husband and wife, but in the body of > which the husband does not join as a grantor, is not only void as a deed, but also inoperative as a contract to convey because the wife was without power to make such a contract, are not now authoritive. . .

Application for rehearing denied.,