70 Ala. 85 | Ala. | 1881
Lead Opinion
These causes, in- all respects but one involving the same questions, and dependent upon the same state
A clear and unequivocal intention to exclude the common-law marital rights of the husband — to create a separate, independent ownership in the wife, free from the control or interference of the husband — is essential to the creation of an equitable separate estate. Particular language, technical forms of expression, need not be employed, though they may be more appropriate, and may not leave the intention embarrassed by doubt, or give room for controversy as to its existence. The question is one of intention; and whenever that can be clearly and certainly collected from the instrument creating the estate, or from the terms of a gift, the equitable estate arises.—Newman v. James, 12 Ala. 29; Brown v. Johnson, 17 Ala. 232;. Jenkins v. MoConico, 26 Ala. 213. Nor is it material in what’ part of the instrument the words excluding the control and interference of the husband; and declaring the independent ownership of the wife, may be found. The habendum clause of a. deed may not be'the ap test place for their insertion; yet, if
Whether the debt to Mrs. Turner was contracted through the agency of Mrs. Kelly, or of her husband; whether the money borrowed was applied to her uses, or to the use of, or wasted by the husband, is not material. She joined in the note given for it, and she had full capacity, by joining in it, to
If Mrs. Kelly had not been under the disability of coverture — if she had been sui juris — the debt would have imposed a personal liability; the mortgage would have been a simple security for its payment. The creditor would have been under no obligation to pursue the mortgage security, to the relief of the debtor from personal liability. If the mortgage security proved unavailing, or insufficient, the debtor could not have claimed the debt was discharged, or extinguished. The debt would have continued, and whatever of estate he had, liable to the satisfaction of debts, would have been liable to its payment. "When a married woman is empowered with the capacity to contract — whenever the obligation of her contracts extends to her equitable estate, as fully and completely as if she were sui juris — if she gives a security binding a pai’t only of such estate, upon what principle, or upon what good reason, can it be said that the contract is operative only to the extent of the security, and, if that is xxnavailing or insufficient, the force and obligation of the conti-act perishes. It is not necessary to the validity and operation of her contracts that a purpose to charge
If her contracts were valid and operative only as appointments of and from' her estate — if an intention to bind the estate was an indispensable element of the contract — it may be that, when a particular security is given, the appointment would be co-extensive only with the security, and an intention to bind any other part of the estate would be excluded. But it is not upon the ground of intention, or of appointment, that a court of equity proceeds in charging her equitable estate. It is upon the broader ground, that as to such estate, her capacity not being limited by the instrument creating it, she is a femme sole— has a status independent of, and separate from that which, at law, coverture imposes. True, it is often said, when the question has been presented, whether contracts to bind her estate should not refer to or mention the estate, that from her contract, independent of her husband, not on his account and credit, the intention to bind her estate would be presumed; otherwise the contract, as to her, would be without validity. But it is no where, in the decisions of this court, affirmed or recognized, that an intention to charge her estate is essential, save so far as such intention is a necessary element of every contract of a person sui juris — that the contract will be kept and performed, and if broken, that to its satisfaction whatever of property the law subjects shall be appropriated, This intention the law conclusively presumes, and no evidence gainsaying it can be heard, unless' the contract, by its own terms and limitations, excludes it. Adhering to the law, as we find it settled by former decisions, the debt due to Masson is chargeable on the equitable estate of Mrs. Kelly, other than that covered by the mortgage, which she owned when the debt was contracted.
The decrees of the chancellor must be reversed, and the causes remanded, for further proceedings in conformity to this opinion.
Dissenting Opinion
dissenting. — I do not concur in the foregoing opinion. I do not think that Mrs. Kelly, by private act, such as was adopted in this case, could convert her statutory separate estate into an equitable estate. The record shows that her brother, Slatter, conveyed a one-half interest in the property to her by gift. In the title he made to her he employed words excluding the marital rights. This undivided half interest she acquired and held by virtue of that conveyance, and it was and is her equitable estate. Her contracts fastened a charge on that undivided half interest. The other undivided half, being her statutory estate, she did not charge by her notes and mortgages.—Code of 1876, § 2709; Coleman v. Smith, 55 Ala. 368.