Patterson v. Simpson, 147 Ala. 550

Patterson v. Simpson

147 Ala. 550 | Ala. | 1906

SIMPSON, J.

The bill in this case was filed by appellee (complainant), seeking to have a deed which had been executed by complainant to one J. E. .Jacobs declared to be a. mortgage, and to have the same delivered up and canceled, on the ground that it was merely an attempt to secure the debt of complainant’s husband. Said appellant (Patterson), it is alleged, purchased the said property from said Jacobs with full notice of.the true facts of the original transaction.

It appears without controversy that the complainant was not, at the time of the filing of the . bill, in possession of the land in question, and the first point raised by counsel .for appellant is that the complainant, not being in possession of the premises, could not maintain a bill to cancel the deed; her remedy at law being full,adequate, and complete. It is. a general principle of law, so often stated .as to have become a maxim, that a court of equity will not entertain a bill to remove a cloud from the title, in favor of a party who is not in possession and whose title is legal, so that he could sue in a court of law and recover the property. — Plant v. Barclay, 56 Ala. 561; Daniel v. Stewart, 55 Ala. 278; Baines v. Barnes, 64 Ala. 375; 4 Pomeroy’s Eq. Ju. (3d Ed.) pp. 2753, 2754, § 3399, and note 1; Brown v. Hunter, 121 Ala. 210, 25 South. 924, In a case in which the facts were similar to those in this case.this court held that the deed was void, and the married woman was. allowed to recover in ejectment. — Elston v. Comer, 108 Ala. 76, 19 South. 324.

It is true that in the' cases of Armstrong v. Connor, 86 Ala. 350, 5 South. 451, and Lansden v. Bone, 90 Ala. 446, 8 South. 65, the expression is used that in cases similar to this a married woman may maintain a bill for cancellation, whether she is in possession or not. *553It will be noticed, however, that those cases are based, without argument, on the- case of Snyder v. Glover, 75 Ala. 379, which was a case in which only a part of the consideration consisted of the debt of the husband, which raised a very different question. But, without stopping to discuss that matter, those cases and others which followed them were based upon the married woman’s law, as it stood up to- the act of February 28,1887 (Code 1896, § 2529), and the only reason given in either of them is that it Avas supposed that under that -statute the deed or mortgage was supposed to • convey the legal title in the Avife. In the Armstrong-Connor Case, Chief Justice Stone commences the opinion by stating that “if the bill in this case had shown that complainant had a legal title to the land on which she could have sued at law, then, being' out of possession, she could obtain no relief in chancery on a bill which had no other equitable aim than a removal of a -cloud from her title.” Tn a later case this court has called attention to the difference in the two statutes, stating that AAdiile, under the former statute, the conveyance carried the legal title, leaving only an equity in the Avifé, yet under the present-statute such instruments are absolutely void, “and the invalidity can be shown at law, as well as in equity, even in defense of an action of ejectment -based upon said mortgage” (Richardson v. Stephens, 122 Ala. 301, 306, 307, 25 South. 39) ; and, as the court says in a later case, “no principle is better settled than that Avhere a contract is in violation of a statute, it is void as against public policy, incapable, - of ratificatiotn, and may be shown to be such in any court.” — Price v. Cooper, 123 Ala. 392, 397, 26, South. 238. As shown by the case of Elston v. Comer, supra, it .makes no difference that the deed was in the shape of an absolute conveyance; the theory being that under.the statute Avhenever it is shown that the deed was intended as a security for the husband’s debt, it is absolutely void, and the married woman can recover in ejectment on her previous -title.

The .remedy at law being full, complete, and adequate, it results that the bill in this case was vvithout equity. *554The decree of the court is reversed, and a decree will be here rendered dismissing the bill for want of equity.

Reversed and rendered.

Weakley, C. J., and Haralson and Dowdell, JJ.-, concur.