Stodenmeyer v. Hart, 46 So. 488

Stodenmeyer v. Hart

46 So. 488 | Ala. | 1908

DOWDELL, J.

This is a statutory action of ejectment. The plaintiff relied for title and right of recovery of the land sued for on a mortgage executed to the plaintiff by the defendant and a purported deed executed by the plaintiff to himself under foreclosure proceedings had under powers given in the mortgage. If it be conceded that the deed executed under the foreclosure proceedings was invalid and insufficient under the powers contained in the mortgage to- convey title, yet, if the *245mortgage was valid, it (the mortgage) conveyed the legal title into the plaintiff, and this was sufficient to make a prima facie case against defendant, and to authorize a recovery. This being so, the admission in evidence against the objection of the defendant of what purported to be a deed under foreclosure proceedings was error without injury.

As a defense the defendant set up that she was a married woman at the date of the execution of the mortgtge by her, and that her husband did not give his assent in writing to its execution as required by the statute, and for that reason the mortgage was void. This is the main issue in the case, and evidence tending to prove or disprove the fact of the defendant’s marriage at the time of the making of the mortgage was relevant. There was no evidence of a marriage under a license issued for that purpose, but the defendant sought to prove marriage by long and continuous cohabitation with one Jerry Henry; they recognizing each other as husband and wife and so holding themselves out to the public. A letter written to the defendant in 1895, long prior to the date of the mortgage, by the said Jerry Henry, and addressed to her as his wife, and signed by him as her husband, and received by the defendant, was, as a circumstance tending to support the theory of marriage, relevant and competent to go to the jury.

The defendant as a witness in her own behalf having testified that she gave in her property to the tax assessor for assessment for taxes, but that she did not remember whether she gave it in in the name of Amelia Henry, or Amelia Stodenmeyer, the name she bore before she married Henry, it was competent in rebuttal for the plaintiff to introduce in evidence the original assessment sheet, shown to have been taken from the files in the assessor’s office, purporting on its face to have been given by the defendant in the name of Amelia Stodenmeyer.

*246Tbe said Jerry Henry having testified in the case as a Avitness for the defendant to his marriage and cohabitation AAdth the defendant, it was competent upon the cross-examination, as going to his impeachment, to ask him if he had not represented himself to others as being an unmarried man. So, too, it was competent, upon proper predicate laid, to show any transaction by him in which he held himself out as an unmarried man.

The equitable doctrine of estoppel in pais has no application to the legal title to land in a court of law. Mayfield’s Dig. vol. 3, p. 411, § 27, and page 419, § 210. That part of the oral charge of the court to the jury asserting a contrary principle was erroneous.

For the errors indicated, the judgment is reversed, and the cause remanded.

Reversed and remanded.

Tyson, C. J., and Simpson and Anderson, JJ., concur.