93 Ala. 165 | Ala. | 1890
— On a former bill by the present appellant, complainant below, in respect of the facts and subject-matter involved now, it was held that the transaction between Louisa J. Vincent and E. E. Walker, in which the former executed a deed, absolute in its terms, to the latter, and took from him,in a separate writing, an undertaking to reconvey to her the land in controversy upon repayment to him of the consideration recited in the deed within a certain time, was a conditional sale, and not a mortgage, as the grantor insisted in that bill. So considered as a sale by Mrs. Vincent, the property belonging to her statutory separate estate, it was further decided that she, being joined therein by her husband, was competent to so contract in relation to, and to convey the land..— Vincent v. Walker, 86 Ala. 333.
The time within which Mrs. Vincent had the privilege of re-purchasing having elapsed, and the privilege not having been exercised, the conveyance is shorn of the defeasance which originally attached to it, and must now be considered as if it had been an absolute deed ab initio, executed with all the formalities essential to the divestiture and passing of the statutory separate estate of a married woman in land. It is so treated in the present bill, .which proceeds in the name of Mrs. Vincent for its cancellation as a cloud on her title, on the ground of its invalidity by reason of facts extraneous to the paper.
The infirmities laid, or attempted in one way or another to be laid against the deed, are three: (1) that its execution was induced by a resort to undue influence, persuasions, etc., on the part of the grantee or beneficiaries ; (2) that its consideration is tainted by an agreement in composition of a felony; and (3) that it was executed without consideration.
Of these, the first and second grounds of attack may be summarily dismissed without further discussion than to say that the facts in respect to them are not sufficiently alleged, and could not be found to exist .on the evidence in this record had they been adequately pleaded. The real and only points in the case, therefore, are whether the complainant may be let
And first: Was there any consideration ? In our opinion, there was not. The facts are these: One Bradley had been tax-collector of the city of Huntsville; appellee, Walker, Frank B. Gurley and another were sureties on his official bond. Gurley had indemnified his co-sureties against loss on the undertaking. Bradley made default in his payments to the city. The amount of his deficit was supposed, it seems, to be about $2,000. The sureties were notified of the defalcation, and recognized their liability. Gurley and Mrs. Yincent were brother and sister. Bradley married a daughter of Mrs. Yincent. Walker married her neice. Mrs. Yincent was not at any time, or in any manner, bound for Bradley’s deficit. Gurley alone, by reason of his indemnification of his co-sureties, was ultimately liable for the whole of it. At his suggestion, Mrs. Bradley went to her mother, and induced her to execute this deed, for the purpose of raising two thousand dollars with which to pay the sum Bradley owed the city. The deed was made to Walker according to an arrangement between him and Gurley. Gurley deposited $2,000 in the bank to Walker’s credit. Against and for this amount Walker drew a check in favor of Mrs. Yincent, to the end that she should apply its proceeds to the payment of Bradley’s deficit. To that end she at once, and in consonance with the general arrangement, indorsed and delivered the check to Bradley. He collected the money on it, and, the deficit turning out to be only $1,750, paid that sum to the city of Huntsville, and paid the balance of $250 to Frank B. Gurley.
.... It is at once manifest from these facts, as to which there is really no conflict in the evidence, that Mrs. Yincent was not to receive, and did not in fact receive, one cent of the recited consideration for her property. It is clear that the sole purpose was to reimburse Gurley money which he alone was ultimately liable to pay, and for which she was in no wise responsible, and that even this purpose has been exceeded in Gurley's favor in such sort that he has received $2,000 worth of Mrs. Yincent’s property, in reimbursement to him of $1,750 expended by him in the satisfaction of his own debt. So, not only has Mrs. Yincent received no consideration of benefit to her, and not only does the transaction involve no consideration of detriment to Gurley, but the latter has actually been paid $250 as a bonus for the liquidation of his own liability.
It will not do to say that, •when the check was delivered to Mrs. Yincent, it was a payment to her, and that the disposition she made of it was a matter with which Gurley and Walker
It is a well established general rule, that the grantor in a deed which acknowledges the receipt of a valuable consideration is estopped, as against the grantee, to say no valuable consideration was in fact received, though the character and amount of the consideration may, even between the parties to the instrument, be shown to be other than as recited. 5 Amer. & Eng. Ency. of Law, pp. 436, 437; 3 Brick. Dig. p. 299, §§ 36 el seq.; Savings Bank v. McDonnell, 89 Ala. 434. But this rule can not apply to a married woman, so as to prevent her showing the absence of all consideration for her deed. With respect to a married woman under such disabilities as rested on her under the statute of force at the time of this transaction, the rule is that only a valid deed — such deed as the statute authorized her to execute — can raise up any estoppel against her.
The transaction here not being a sale within the enabling statute cited, the recital in the deed acknowledging the receipt . of a valuable and, for aught that appears, an adequate consideration, does not estop Mrs. Vincent to show that there was no consideration, as it would do had she been sui juris. Hardin v. Darwin, 77 Ala. 472, 482; Wilder v. Wilder, 89 Ala. 414, 418. And in our opinion, as we have said, she has clearly shown that there was no consideration for the deed. It is void, and must be cancelled as a cloud on her title, as prayed in her bill.
Accordingly, the decree of the chancellor is reversed, and a decree will be here rendered adjudging the invalidity of the deed, and directing it to be delivered up to the register of the Madison Chancery Court, and be cancelled by him.
Reversed and rendered.