Robinson v. Walker, 81 Ala. 404

81 Ala. 404 | Ala. | 1886

SOMERVILLE, J.

— It is shown by the record that the appellant, Mrs. Robinson, a married woman, was, in March, 1879, on petition filed by her in the Chancery Court, regularly relieved of her disabilities of coverture under the provisions of section 2781 of the present Code, so far as to invest her with “the right to buy, sell, hold, convey and mortgage, real and personal property, and to sue and be sued as a femme sole.” — Code (1876), § 2731. The main question raised in this case is, whether she was thus invested with the capacity to mortgage certain real estate belonging to her under the statutes of the State, without the concurrence of her husband in the joint execution of the conveyance. Of her right to do this we can not entertain any doubt. We construe this statute to mean that when the wife is once regularly invested by a court of competent jurisdiction with the right to buy, sell and mortgage her property, and otherwise deal with it as authorized by the provisions of this statute, she may exercise each of these powers severally, in her own discretion, just as if she were a femme sole — that is, just as if she were unmarried, or had no husband. It could never have been intended to confer such a right, and then to practically nullify it by impliedly requiring her husband to unite with her in doing these several things. The very purpose of the statute was to emancipate her from the dominion of the husband, pro hue vice, in the execution of these powers, and to authorize her to sue and be sued alone in all actions or suits arising in reference to them. With this view all of the past decisions of this court fully harmonize. Parker v. Roswald, 78 Ala. 526; Dreyfus v. Wolfe, 65 Ala. 496; Agnew v. Holt, 67 Ala. 367; Falk v. Hetch, 75 Ala. 293; Meyer v. Sulzbacher, 76 Ala. 120; Sims v. Adams, 78 Ala. 395; Cook v. Meyer, 73 Ala. 580.

This conclusion is in no wise weakened by the fact that the mere removal'of the wife’s disabilities of coverture under this statute, does not work a removal of the husband from his position as trustee of her estate, nor deprive him of his right as husband to the rents and profits. Cook v. Meyer, 73 Ala. 580. It is not, in other words, the conferring of such powers on the wife which operates to take away the husband’s rights, but the execution by her of such powers, for so long as they are dormant they injure no one. There is no reason why this should not be so, at least, until she has actually exercised her right to sell, convey or mortgage. But when this is done, and she has actually put in operation the powers conferred, the rights of the husband must, pro tanto, yield to the legal results of such contracts, and Ire taken away to that extent. The trusteeship being given by statute, can be modified or abrogated in the same way, especially with the assent of the husband, as in this case, or after the requisite legal notice to him of the intention of the court to render a decree to this effect. — Halliday v. Jones, 57 Ala. 525 ; Perryman v. Greer, 39 Ala. 133. This is believed to be the construction commonly given this statute by the bar of the State, and acquiesced in by the judiciary since its enactment, and no doubt many titles have been acquired upon the faith of it. We have no doubt of its correctness, and if we had, would hesitate long before unsettling it.

2. There is another view fatal to the case of appellant. The question here raised as to the validity of her mortgage executed to Peck on the 20th of March, 1879, is res adjudicata. It was a question necessarily involved in the chancery suit embracing the foreclosure of this same mortgage, commenced by bill filed by the appellant, Mrs. Bobinson, on January 3d, 1881, against A. B. Peck and others, in which a decree was rendered foreclosing the mortgage. Under this decree the property in controversy was sold and the appellees hold by privity of title with the purchasers at that sale. Having failed to successfully assail the mortgage in the first suit, the appellant can not be permitted to do so in the present litigation. The case presented is one of estoppel by judgment, being, as we have said, res adjudicata.- It is not distinguishable in principle from McDonald v. Mobile Life Ins. Co., 65 Ala. 358, or from the case of Holden v. Bison, 77 Ala. 515. Nor is this conclusion in conflict with anything decided in the case of Callen v. Rottenberry, 76 Ala. 169.

The decree must be affirmed.