Robinson v. O'Neal

STONE, J. Under the principles settled in Short v. Battle, 52 Ala. 456, the estate of Mary O’Neal in the lands described in the mortgage, which the bill seeks to foreclose, was her equitable separate estate. The decision in that case followed all the adjudications of this court up to the year 1868, most of which are referred to in the opinion. The decisions since 18^8, asserting a different doctrine, are therein overruled, and the old principle re-established, that when the instrument creating the estate, no matter when executed, contains words which exclude the marital rights, then the estate is equitable, not statutory. In Short v. Battle, supra, speaking of such estates, this court said, “that as to such property, the wife should be regarded as a feme sole, having capacity to contract, alienate, or otherwise dispose of, or to charge it, unless restrained by the instrument creating the estate.” The deed creating the estate in Mrs. O’Neal contains words which exclude the marital rights, without any • 543 words wbicb restrain tbe power to charge or alienate. It follows, tbat she bad power to charge ber interest in tbe lot in controversy, by mortgage duly executed by ber. Tbe note of Mrs. O’Neal has subscribing witnesses. This, without more, was an equitable charge on ber equitable separate estate. Tbe mortgage was signed only with tbe mark of Mrs. O’Neal, and is not attested by subscribing witnesses. It was acknowledged by ber, and such acknowledgment certified, strictly in accordance with the statute. — Bev. Code, §§1548,1552. “Conveyances for tbe alienation of lands . . must be attested by one, or, where tbe party cannot write, by two witnesses, who are able to write, and who must write their names as witnesses.” — Bev. Code, § 1535. In tbe next section (1536) it is declared, tbat “ the acknowledgment hereinafter provided for operates as a compliance with tbe requisitions of tbe preceding section upon the subject of witnesses.” This language is too explicit, too complete, to leave any room for construction. It is as broad as tbe section wbicb requires subscribing witnesses, and makes tbe certificate supply their place. When a mortgage is acknowledged and certified • as this was, it needs no attesting witnesses. — Hendon v. White, 52 Ala. 597; Merritt v. Phenix, 48 Ala. 87. The final decree, foreclosing tbe mortgage, and ordering a sale of an undivided half interest of tbe property thereunder, was in all things correct; and we find nothing irregular in the sale, confirmation thereof, and order putting tbe purchaser in possession jointly with Catherine Calford, tbe other tenant in common. "We, therefore, re-establish tbe said original decree, and all tbat was done thereunder, as shown by this record; and a decree is here rendered accordingly. Tbe last decree of the chancellor, rendered in this cause, is reversed, and a decree here rendered, as shown above. Let tbe appellee pay tbe costs of tbe court below, incurred since tbe former reversal, and of this court.