Northington v. Faber, 52 Ala. 45

52 Ala. 45 | Ala. | 1875

JUDGE, J.

That the wife cannot make a valid mortgage of her statutory separate estate to secure the payment of her husband’s debts, is now the settled law of this State ; and it is also settled, that every such mortgage is forbidden by law and void. Bibb & Wife v. Pope, 43 Ala. 90; Wilkinson v. Cheatham, 45 Ala. 337; Davidson v. Lanier, June term, 1874.

Furthermore, it was held in the case of Davidson v. Lanier, supra, that if the husband uses the statutory separate estate of his wife, he becomes indebted to her to the amount thus used, and may pay or secure the debt by a conveyance of property for that purpose; and that, although the husband niay be insolvent, and owe other creditors at the time, the wife will be protected in her title thus acquired, both against the husband and the husband’s creditors.

The principles settled by these decisions have been too long acquiesced in, and acted upon, to be now disturbed, even though we should doubt their correctness; and an application of them to this case relieves it of all difficulty.

If 'the conveyance by Hall to the trustee was bond fide made to secure an actual subsisting indebtedness by him to his wife, incurred by the conversion of his wife’s statutory separate estate, its validity can in no way be affected by his having been indebted at the time, to other creditors, beyond his ability to pay ; and if such was the character and purpose of the conveyance, when Mrs. Hall became invested with the title to the property conveyed therein, by a sale thereunder, as is shown by the record, it was her separate estate, under the Code of Alabama ; and the subsequent mortgage of the property by herself and husband to Faber & Co., to secure the payment of a debt of the husband, conveyed no title or interest to them. If the title of Mrs. Hall had been bond fide acquired, the mortgage was simply a nullity, and it can be successfully attacked as such in any court where a right is claimed under it.

The charge of the court below, excepted to by the plaintiff, that if the jury should believe that Mrs. Hall, “ by her silence, acts, declaration, or deed, induced Faber & Co. to believe that the property embraced in the mortgage was her husband’s, and procured credit for him on the faith of it,” &c., that then they must find for the defendant, was erroneous. The bill of exceptions purports to set out all the evidence introduced on the trial, and we can perceive no testimony which authorized this charge. It was not only abstract, but had a tendency to mislead the jury.

We deem it unnecessary to notice any other questions presented by the record, as what we have said, it is believed, will afford a sufficient guide for the circuit court on another trial.

Let the judgment be reversed and the cause remanded.