140 Ala. 575 | Ala. | 1903
The bill in this cause is exhibited by the complainant against her husband and the Southern Building & Loan Association, and seeks to have a resulting trust decreed in her favor in the lot described in it, to have the legal title residing in her husband invested in her and to cancel the conveyances under which the Association claims title.
It is shown undisputedly by the testimony that the consideration paid for the lot was with property belonging to complainant and that by mistake of the scrivener the deed was made to her husband instead of to her. So then as between her and her husband her equity is fully established, and unless the deed of trust which he executed to the Association was effectual to pass to it the title, which he held in trust for her, she is ■ entitled to the relief sought.
The lot attempted to be conveyed by the trust deed was occupied by complainant and her husband as a homestead, and if it be here conceded that it was his homestead by reason of his having the legal title to it,
Of course, if the trustee in the deed acquired no title, the purchaser at the foreclosure sale under it acquired none. But the Association invokes the protection of a bona fide purchaser for value without notice of complainant’s equity. This it cannot do, for the obvious reason that it acquired no title to the lot in controversy. It was not a purchaser at all. It got nothing by the deed of trust and, therefore, acquired no interest whatever, either legal or equitable, in the lot. The first requisite upon which the doctrine of bona fide purchase is made to rest is wanting. As said by Chief Justice Marshall, in Vatteer v. Hinde, 7 Pet. 274, quoted approvingly by this court in Shorter v. Frazer, 64 Ala. 81, and again in Overall v. Taylor, 99 Ala. 18: “The rules respecting a purchaser without notice are framed for the protection of him who purchases merely without knowledge of an outstanding equity. They do not protect a person who acquires no semblance of title. They apply fully only to the purchaser of the legal estate. Even the purchaser of an equity is bound to take notice of any prior equity.” See, also, Graft v. Russell, 67 Ala. 9; 23 Am. & Eng. Ency. Law, (2d ed.), p. 479, et seq.
The next contention of the Association is that com-plfiinant is estopped to assert her equity because she signed the deed of trust, knowing that her husband would obtain money on the faith of it from the Association. Equity regarding that as done which ought to have been done, the complainant is, in equity, the owner of the lot. It was and is her statutory separate estate, and to allow it, by way of estoppel, to be taken from her and subjected to the payment of her husband’s debt, would be to accomplish that which the law and public
The case of Osborne v. Cooper, 113 Ala. 405, cited by respondent as supporting its contention on this point clearly has no application. The chancellor seemed to have entertained the opinion that complainant was es-topped because her husband was in possession of the lot when the bill was filed as the tenant of the Association. The deed of trust being a nullity, he would not have been estopped to attack it, much less she, because of the falsity of the certificate under the facts shown in this record.—Crim v. Nelms, 79 Ala. 604; Smith v. Pearce, 85 Ala. 264; Strauss v. Harrison, 79 Ala. 324.
The debt attempted to be secured by the void deed of trust was not complainant’s. She was neither morally nor legally bound for it. Just why she should be required to offer in her bill to pay it in order to have her equity enforced against her husband, and to have the void conveyances held by the respondent Association cancelled as a cloud upon her title, we confess our inability to see.
Clearly the cases relied upon by appellee, where the hill was filed by the husband, to cancel a mortgage executed by him on his homestead because void, have no application.
As said above, complainant is, in equity, the owner of the lot. She, therefore, has the right to maintain this bill. Her right to the lot is not, as contended, based upon her marital relation, nor is her right to maintain this suit predicated upon that relation, but upon her ownership of the property.
In conclusion it may be well to say that complainant was not bound to prove that the Association had notice of her equity, although alleged in the amendment to her bill, since the respondent has utterly failed to sustain
Tbe decree appealed from will be reversed and one wall be bere rendered granting to complainant tbe relief sbe seeks.
Reversed and rendered.