Tutwiler v. Munford

73 Ala. 308 | Ala. | 1882

BRICKELL, C. J.

— The legal estate in the premises in controversy was vested in Munford by the conveyance executed by Ormond. If any trust or use could have resulted to Mrs. Munford, because her reversion in the real estate in Maryland and in Virginia formed part of the consideration upon which Ormond’s conveyance was executed, a court of equity only could take cognizance of and enforce it as against the legal .estate. An action of ejectment, or the corresponding statutory real action; can not' be defended upon an equitable title, whatever may be its stregth.— Mitchell v. Robertson, 15 Ala. 412; Childress v. Monette, 54 Ala. 317; Hickey v. Stewart, 3 How. (U. S.) 750; Lehman, Durr & Co. v. Bryan, 67 Ala. 558, 560.

The instrument subsequently executed by Munford, whether it is regarded as -a mere declaration of trust, or as a covenant to stand seized, did not operate to divest the legal estate, or to create in Mrs. Munford an interest in the lands of which a court of law can take notice. A declaration of trust is not a grant; it is a recognition in writing of the trust, to which the legal estate is subject, and furnishes evidence which will satisfy the requirements of the statute of frauds, if the trust is of' the character which falls within the inhibitions of the statute. Perry on Trusts, 381. As a covenant to stand seized, in a court of law it is inoperative, upon the same principle that all contracts and conveyances between husband and wife directly are, at law, ineffectual. “ A man,” says Lord Coke, “ may by his deed covenant with others to stand seized to the use of his wife, or make a feoffment or other conveyance to the use of his wife. . . . But a man can not covenant with his wife to stand seized to her use; because he can not covenant with her, by reason of the two being, in the language of Littleton, ‘ but one person in the law.’ ” — 1 Bishop on "Mar. Women, § 717.

The reversion of the wife’s lands, as well as her contingent right of dower, or her separate estate, will form a valuable consideration for a post-nuptial settlement; and if this instrument was executed to pass the estate in the lands to the use of the wife and her children, in pursuance of the intention and agreement of husband and wife at the time of the conveyance to Ormond of the lands in Virginia and Maryland, in the absence of an intent on the part of the husband to hinder, delay, or defraud his creditors, in which the wife participated, a court of equity will give effect to it, as against his antecedent or subsequent creditors.' — Bump on Fraud. Conv. 316; Hoot v. Sorrell, 11 Ala. 386; W. & M. College v. Powell, 12 Gratt. 372; Wilson v. Ayer, 7 Greenl. (Me.) 207. "While in courts of law husband and wife are deemed incapable of contracting with each other, a court of equity will give full effect to their post-nuptial contracts, when fair and founded on a valuable consideration. — 2 Story’s Equity, § 1372; Andrews v. Andrews, 28 Ala. 432.

The legal estate in the lands residing in Munford at the time of the levy of the attachment, and, of the sale by the sheriff, the plaintiff acquired it by his purchase and the conveyance executed to him by the sheriff. Having this legal estate, and the right of possession, he was entitled to recover in the present action, whatever may be the equities of the wife and her children. The circuit court erred in the instruction given to the jury on the request of the defendant, and erred iii~refusing,the instruction requested, that the plaintiff was entitled to recover.

Reversed and remanded.