Bibb v. Pope

PETERS, J. On the 5th April, 1866, Augustus Pope, — 197 — the husband of Mrs. Evelyn Pope, appellee, borrowed of J. DuBose Bibb, appellant, the sum of $10,000, for which he gave his bill of exchange for $12,400, payable eight months after date, to the order of said Bibb. On the same day said Augustus Pope executed and delivered to said Bibb a certain conveyance in writing, in the form of a mortgage, whereby he conveyed to Bibb certain lands therein named, which belonged to himself, and a lot, numbered 57, in the city of Montgomery, in this State, which was the separate property of his wife, said Evelyn Pope. This mortgage contained a power to sell the lands conveyed therein, in the event that Pope failed to pay said bill of exchange, at its maturity. Mrs. Pope united with her husband in this mortgage, and the same is attested by two witnesses. At the maturity of the bill of exchange Pope failed to pay it, and Bibb then proceeded to advertise a sale of the mortgaged property, for the purpose of selling the same, for payment of his debt against said Augustus Pope, and included in said advertisement the lot belonging to Mrs. Pope, as her separate estate. Thereupon, Mrs. Pope, by her next friend, filed her bill in the- chancery court of Montgomery county aforesaid, against said Bibb, and said Augustus Pope, her husband, for the purpose of enjoining and preventing said proposed sale of her said lot, No. 57. An injunction was granted her, and upon the final hearing it was made perpetual. The bill was filed on on the 25d day of January, 1867. It appears from the bill and proofs, that B. N. Wilkerson and his wife Elizabeth, gave the lot in controversy to Mrs. Pope, by deed, on the 10th day of August, 1860, to have and to hold the same to her, “ her heirs and assigns, to her use and behalf forever.” Upon the hearing the chancellor sustained the bill and perpetually enjoined Bibb from selling said lot, No. 57, as the separate estate of Mrs. Pope, under said mortgage, and taxed Bibb with the costs. Erom this decree Bibb appeals to this court. The only question discussed at the bar was, whether Mrs. Pope was bound by said mortgage, and whether her statutory separate estate was liable to be sold under it, to pay her husband’s debt, due by said bill of exchange to said — 198 — Bibb. This question has not heretofore been settled by any decision of this court. In discussing it, the court can not close its eyes to the fact that the wife is under the power of the husband, and often acts, when he chooses to invoke her aid, under an influence but little less potent than actual duress. Nor can it ignore the further fact, that the law, under the common-law system, has treated the wife, in some respects, as the servant of the husband, subject to his control even to chastisement by stripes “ in case of any gross misbehavior.”—1 Blac. Com. 444, 445; 2 Kent Com. 181. She has been placed very much upon the footing of a child during its minority. She has had no voice in any one of the great departments of the government; no voice at the ballot box; no voice on the jury. She rarely deals with the husband, or where he is interested, upon equal terms with him. And the protection both of her person and her property has been, in a very great degree, a matter of fashion and charity, rather than of law and justice, until within the last twenty years. She is peaceful, timid and confiding, and in many matters of business, is utterly ignorant of the consequences of her own acts. Whether this be the result of choice or training, or the necessities of society, its effects are the same. It very much cripples her ability to guard her rights of property from invasion, and her estate from destruction by losses which do not originate from her own faults, but often against her feeble and hampered remonstrance. These circumstances have rendered her, of late years, the peculiar object of legislative solicitude and protection. The lawmaking wisdom of the State has seen and felt her need of greater protection than the common-law afforded, and has devised, under various title, “ laws for the protection of the rights of married women.” Thus far, such laws have recommended themselves so strongly to public favor, that, to secure them from repeal and fluctuation, they have been, in many instances, incorporated into the fundamental law of the State. And we think it safe to say that, the declared and manifest purpose of such enactments furnishes a just rule for their interpretation. They were made to avoid the known insecurity to which the estates of married women — 199 — are exposed, from the improvidence or maladministration of the husband, who necessarily exercises so large a control over the wife, and through her, over her estate. The Code of 1852, which is copied into the Revised Code of this State, and which latter Code, with certain modifications, is now the law that must govern the judgment of this tribunal, declares that “all the property of the wife, held by her previous to the marriage, or which she may become entitled to after the marriage, in any manner, is the separate estate of the wife, and is not subject to the payment of the debts of her husband.” Another section of the same law vests in the husband, as the trustee of the wife, her separate estate, and gives him the control and disposition of the “ rents, income and profits thereof, but such rents, income and profits are not subject to the payment of the debts of the husband.”—Revised Code, §§ 2371, 2372; Patterson v. Flanagan, 37 Ala. 513. The bill in this case is filed by the wife, Mrs. Pope, to prevent the sale of her separate estate for the payment of the debt of her husband, Augustus Pope — a thing which the statute declares shall not be done. If, then, this' sale is permitted, the whole purpose of the law, so far as it protects the wife’s separate estate, will be defeated ; for when the principle is once admitted that this may be done, methods and ways will soon be discovered to carry it into unlimited effect. This can not be allowed. It would be a violation of law by indirection; and what it is illegal to do directly, is also illegal if done indirectly. Eor it is the thing that is forbidden, and not the manner of doing it. In whatever form, then, whether of law or in equity, this is attempted, the power to do it is denied by the express words of the statute, by the whole scope of its intent, and by the character of the evil sought to be remedied. It was very earnestly contended at the bar, by the learned counsel for the appellant, that the wife had the power to sell, and, therefore, she hadthe power to mortgage her estate for the payment of the husband’s debts, because the p'ower to sell was the greater power, and, as the greater always contains the less, the right to mortgage, because it was a form of sale, followed the power to sell, as a neces — 200 — sary consequence. Omne major continet in se minus. This is an admitted rule of logic and also of law. But it is not strictly applicable in this ease. The distinction is lost sight of, that the wife can neither sell nor mortgage her separate estate under the statute, for the payment of the husband’s debts. This. would defeat the purpose and the words of the act itself. It would tear away from the wife its whole protective force, whenever the husband chose to avail himself of her means. She is much under the influence of the affections. It is her weakness “ to love not wisely but too well,” and shrewd and unscrupulous men know full well how to take advantage of this weakness, often to her beggary and ruin. And it is this that the law interposes to prevent. In Warfield v. Ravisies and Wife, this court has said that, “ Property held by the wife, either under the acts of 1850, or under the Code, cannot be said to be the separate estate of the wife, in its broadest sense.”—38 Ala. 623. Yet, it is in this sense, that the appellant presses his rights upon the court. The sale that the wife and her husband are permitted to make, without the aid of chancery, is only such a sale as is mentioned in the act — that is, a sale for the purpose of re-investing the proceeds in other property, which is also the separate estate of the wife, or for the support of the family. A mortgage within these limits would be almost a futile act; and such is not the mortgage here insisted on.—Revised Code, §§ 2373, 2374, 2376; Alexander v. Saulsberry, 37 Ala. 375; Warfield v. Ravisies and Wife, 38 Ala. 518. It is further urged against the validity of this mortgage, that it is a fraud upon Mrs. Pope, and void for that reason. Her husband is her trustee ; the mortgage could not have been accomplished without his concurrence; that its execution jeopardized the trust estate for the benefit of the trustee, and not for her benefit; and that if it is enforced it will utterly ruin the trust estate, solely for the trustee’s individual profit. Bibb knew this, or was bound to know it, and cannot be excused if he did not. And to permit him to take advantage of it would be to aid him and the trustee to profit by their own injurious acts. And although the transaction might not be strictly and technically a — 201 — fraud, it has the same effect. And upon the same principle, that the greater contains the less, it may be said with equal truth, that things equal to the same thing are equal to each other. So that whatever has the effect of a fraud, in the management of a trust, must be treated as a fraud. Revised Code, section 2372; Johnson v. Thweatt, 18 Ala. 741; Boney v. Hollingsworth, 23 Ala. 690; Trippe v. Trippe, 29 Ala. 637; Charles v. DuBose, 29 Ala. 367; 1 Story Eq. 322 and 323. The decree of the chancellor in the court below being in conformity with these views, must be, and is hereby affirmed. It is further ordered that the appellant, J. DuBose Bibb, and his securities on his appeal bond, pay the costs.