97 Ala. 451 | Ala. | 1892
— Mary B. Fitzsimmons, during lier lifetime was the beneficial owner of a large body of land, lying in Bussell county of this State. She was a married woman, and at tlie time of tbe occurrences after mentioned, O. P. Fitzsimmons, Sr., ber liusband, was ber trustee. Tbe title to tbe lands was vested in ber husband — trustee'—for ber benefit. Its provisions are, “To bave and to bold [to tbe trustee and bis successors ] in trust for tbe sole and separate use, benefit and behoof of [Mary B. Fitzsimmons | and her heirs free of all claims, liability or control of [ber husband | tbe said Mary B. F. to have the right and privilege of disposing of tbe same by last will and testament as sbe shall deem proper, by and with the advice and consent of tbe [trustee] Provided always, and it is hereby declared to be a part of my intent and purpose by tbe execution of these presents that [Mary B. F.J and tbe said [trustee] shall and may’- by their joint deed of conveyance, sell, transfer and dispose of any portion of tbe trust property hereby conveyed, and invest tlie proceeds thereof in any other property, to be held by tbe said trustee upon tbe same trust, and for tbe same intent and purpose, as tbe said property which shall have been sold by them ; and that [Mary B. F. | and tbe said [trustee] shall and may by their joint deed of conveyance, dispose or transfer and convey any portion of tbe trust property hereby conveyed, in exchange for any other property, being real estate, stocks, funds, or securities of any sort or description whatever, according as in their judgment shall be most advisable — tbe said property so received in exchange to be held by tlie said trustee upon tbe same trust, and for tbe same intent and purpose as the property which shall bave been disposed of in exchange for tbe same ; it being hereby expressly understood, declared and published that tbe purchaser of tlie said trust property, or tbe person receiving tbe same in exchange for the other property, shall in no case, instance, or manner be held responsible to look after tbe application of tlie purchase-money, or property so received in exchange by tbe said trustee.”
Tbe present suit is what is known as a bill of review.
Tbe pleadings and documentary facts in tbe original case, which tbe present suit seeks to bave reviewed, show tbe following transaction :
On May 8, 1883, O. P. Fitzsimmons, Sr., tbe trustee, and bis wife, Mary B. Fitzsimmons, tbe beneficiary, executed a conveyance of all of said lands covered by tbe trust-deed, to E. Motte Fitzsimmons, their son. The conveyance is an ordinary deed of bargain and sale, on a recited consideration
In September, 1885, Mary B. Fitzsimmons filed her original bill against Frederick Smyth, and others for the purpose of removing and vacating the said deed to E. Motte Fitzsimmons, and the mortgage from him to Frederick Smyth, as clouds upon her title to said lands. She set forth her title as hereinabove shown, and averred that the conveyance by herself and trustee — her husband — to E. Motte Fitzsimmons, although it recites twenty thousand dollars as the consideration, was in fact upon no consideration whatever. That her husband O. P. Fitzsimmons, procured the deed and mortgage to be executed to enable him to borrow money on that security, which he succeeded in doing ; and that there was no other consideration for either conveyance. She averred further that all this was known to, and advised by the agent of the Loan Company, before the loan was perfected.
There was a demurrer to Mrs. Fitzsimmons’ bill, which the Chancellor overruled. In April, 1889, the cause having been submitted for final decree, full relief was granted to complainant, and the mortgage ordered to be vacated and cancelled. The bill of review was filed in October, 1890, and a demurrer final was sustained to it in October, 1891. From that ruling the present appeal is prosecuted.
Was there merit in the bill of Mrs. Fitzsimmons?
In 2 Pom. Eq. 2nd. ed., § 1104, is this language: “Where the separate estate embraces land, the wife’s power of disposition oyer her life estates therein has never been doubted, and her contracts to sell or to mortgage such life estates have always been specifically enforced against her. . . The general rule is now established, that the wife’s power of disposition as a feme sole extends to estates in fee in lands, as fully as to life estates, or to personal property. . . As an incident of her general power of disposition, unless she is expressly restrained from anticipation, a married woman renders her separate property liable for a breach of trust by her trustees in which she has concurred, and for a breach of trust which she herself commits.” This is said by the
In 2 Sto. Eq. Ju., § 1394, it is said: “If the property is expressly given to a married woman, 'to her for her sole and separate use,’ without saying, for life; and if she is further authorized to dispose of the same by will; in such a case the gift will be construed to confer on her the absolute property, and consequently she may dispose of it otherwise than by will; for the absolute property being given, the power becomes nugatory, and is construed to be nothing more than an anxious expression of the donor, that she may have an uncontrolled power of disposing of the property. So, if a limitation be to a married woman for life, for her sole and separate use, with a particular power of appointment of the property, and in default of any appointment the property is limited to her personal representatives, she will, or at least may, under such circumstances, be deemed the absolute owner; and as sirch, she will have an unlimited power to dispose of the property generally, without any exercise of the power of appointment.”
These principles, so declared by these standard authors, are amply sustained by the numerous decisions to which they refer. See also Hulne v. Tenant, 1 Bro. C. C. 16; s. c., 1 Leading. Cases in Eq. (481), and.the elaborate note added thereto. — Ib. top 741 et. seq.
It would seem that this question ought to be regarded as forever put to rest in Alabama. In Burrus v. Dawson, 66 Ala. 476, the conveyance was to a trustee for the benefit of a married woman during coverture. It contained the following clauses: “The said lands to be held by the said Hamlin L. Dudley, trustee, as the separate estate of the said Barbara Dawson [the beneficiary] with power to sell, mortgage, exchange, or otherwise dispose of the same, provided the said Barbara shall join with the said Hamlin in any sale, conveyance, exchange, or other disposition of said property, and by such joint action manifest her consent to the disposal of the same in writing. To have and to hold the said bargained premises, unto him the said Hamlin L. Dudley, trustee, his heirs and assigns, together with all and singular the rights, members and appurtenances thereof, the same in any manner belonging, to his and her proper use;
In the case of Butler v. Gazzam, 81 Ala. 491, the conveyance was by the husband to a trustee for the benefit of his wife during life, remainder to the heirs of the grantor. The conveyance directed that the property, which was real estate, was to be kept free from incumbrance. There was a power of sale “on the written request” of the life beneficiary, the proceeds to be re-invested for the purposes of the trust. The husband, maker of the trust, the wife, life beneficiary, and the trustee united in a mortgage to secure the payment of a debt due from the husband. It was held that the mortgage conveyed no greater interest than the life estate of the wife. That case is not opposed to those collated above, but on the main question — the authority of the beneficiary to mortgage her own interest — it follows and supports them.
It will be noted that by the terms of the conveyance to Mrs. Fitzsimmons, the absolute, beneficial ownership in the land was vested in her — an equitable fee simple. There is neither remainder nor reversion provided for, and any one claiming to succeed to her rights, save as a purchaser or devisee from her, must found his claim alone on inheritance from her. Neither is there any disabling, restraining, or restricting clause in the deed which declares and defines her title or interest.
The deed from Mrs. Fitzsimmons and her husband to E. Motte Fitzsimmons, although it recites a valuable consideration, was in fact upon no consideration whatever. Its sole purpose was to enable the latter to pledge and mortgage the land as security for the repayment of money proposed to be borrowed, and actually obtained by the husband and trustee, and, so far as the record informs us, borrowed for his o.wn purposes. And these facts were fully known to the lender. Do these facts give to Mrs. Fitzsimmons the right to have the mortgage vacated and annulled, as a cloud on her title? We answer unhesitatingly no. Had she been a feme sole in fact, no one would dispute her right to execute
Does the record before us present a case which entitles the complainant to relief on bill of review ?
In McDougald v. Dougherty, 39 Ala. 409, 424, we quoted and approved the following language from Evans v. Clement, 14 Ill., 209 : “It has now become well settled that the court will, on such a bill, reverse or revise its own decree for an erroneous application of the law to the facts found, whenever a court of appeals would do so for the same cause.” "We cited many authorities in support of this proposition, and among them P. & M. Bank v. Dundas, 10 Ala. 667. In the same case — McDougald v. Dougherty — 428, we said, “We adopt the rule that on the question of error apparent that will justify a bill of review, it is permissible to consult all the facts which are apparent in the pleadings, in the process and its service, in orders, reports confirmed, and opinions and decrées of the chancellor.” ' In Griggs v. Gear, 3 Gilman 2, the court said, “A bill of review may be brought fox error of law which is apparent upon the face of the decree itself. In such a case no question is raised as to the propriety of the determination of matters of fact, or the evidence upon which the decree is founded, but it is only on matters of law as arising upon the facts, which are to be taken as absolutely true, as stated in the decree, that any question can be raised. By decree, here must be understood, not only the final judgment of the court, but the pleadings also, the substance of which, according to the English practice, is recited in the decree. So that in passing upon the errors assigned in the bill of review, the court will look through the bill, answer, the facts as found and determined
In the original suit and decree thereon, which this bill seeks to review, there was no disputed question of fact. Every question we need consider was raised on the face of •the bill itself, and the demurrer thereto. That bill of Mrs. Fitzsimmons’ was founded on the deed made for her benefit, the material parts of which are set out in the opening of this opinion. She set forth that deed as her title, and did not deny that she united with her husband in the deed made to E. Motte Fitzsimmons — did not deny the execution of the mortgage. She claimed relief alone on the fact that the deed she joined in the execution of was not made in the form and for the purpose specified in the conveyance which secured the property to her, but was made upon no consideration, and for a different purpose, namely: to enable her husband to borrow money, and that the lender knew these facts before and at the time he accepted the security and parted with his money. The pleadings clearly show this state of facts, and the chancellor, in giving reasons for his decree, shows that he based it alone on the fact that the deed and mortgage were not executed in accordance with the power of alienation, nor for the purpose expressed in the conveyance which secured the property to Mrs. Fitz- ’ simmons, and that these facts were known to the lender while the negotiations were pending. We do not hesitate in declaring that this is a proper case for a bill of review, and that appellant is entitled to the relief he prays.
The decree of the chancellor is reversed, and a decree here rendered, overruling the demurrer to the bill of review. This ruling is based on the ground that there is error apparent on the face of the decree in the original cause.
Reversed and rendered.