131 Ala. 563 | Ala. | 1901
The appellant brought her action in ejectment against Silas W. Peavy, the tenant in possession, to recover a certain lot in the city of Birmingham. Mrs. E. E. McLemore, on her application, was admitted to defend as landlord.
With respect- to her power to mortgage her property to secure her husband’s debt, a married woman is under the same incapacity as before the adoption of the married woman’s law of , 3 887. Her attempt to convey her property for this purpose is a nullity. It does not operate to divest her title, and she can maintain ejectment for real estate so conveyed by her. — Elston v. Comer, 108 Ala. 76; Richardson v. Stephens, 122 Ala. 301, and cases there cited.
In Richardson v. Stephens, supra, it was said: “The statute [forbidding a married woman to become surety for her husband] is founded upon public policy, which is to protect the wife's estate against the influence of her husband or other person, or her own inclination in respect to subjecting it to her husband’s debts. Being by the law prohibited to so contract, appellee could not by attempting to do so estop herself to deny heir want of power. Equity will not, by 'setting up an estoppel against her, accomplish that which the law and public policy have forbidden.’’ It was not intended by this to assert that the wife may not estop herself by positive acts of fraud, or by concealment or suppression, which in law would be equivalent thereto, nor, on the other hand, do we intend, in what is here said, to intimate a contrary opinion, the decision of that question being unnecessary to tlie determination of this case, but that the doctrine of estoppel, in the absence of fraud, such, for example, as might,' 'sometimes arise from mere silence, would not operate to divest her of her title. As stated above, there was no positive act of 'fraud on the part of the wife, nor any concealment or suppression that would amount thereto, and consequently her silence at the
The declaration of Wheelan of his agency, 'and the acceptance of the mortgage and note by Mrs. McLemore and her subsequent foreclosure of the same, were sufficient to show Wheelan’s agency, and this being shown, knowledge and notice to Wheelan of the loan being made to J. M. Russell, the husband, and that the wife was •the mere surety of the husband, would be .visited on Mrs. McLemoire, the principal.
It follows, therefore, that the court erred in giving the general charge as requested by the defendant and refusing the same to the plaintiff. The judgment of the circuit court will be reversed and the cause remanded.
Reversed and remanded.