McMillan v. Peacock

BRICKELL, C. J. The important inquiry this ease presents is, whether the mortgage is a conveyance of the wife’s statutory, or of her equitable separate estate. The deed creating it is not exhibited, but the bill and answers concur in averring it was a conveyance by the husband directly to the wife, in consideration of love and affection. In neither bill, or answer, is it averred that words excluding the marital rights of the husband were employed. It is the settled law of this court that the statutes creating and defining the separate estates of married women, relate only to estates, which without legislation, would not have been separate, but would have been subject to the common law marital rights of the husband, and not to estates which, by operation of the instrument or contract creating them, are freed from these rights, and the separate estate of the wife, in contemplation of a court of equity.—Pickens v. Oliver, 29 Ala. 528; Smith v. Smith, 30 Ala. 642; Cannon v. Turner, 32 Ala. 483; Cowles v. Morgan, 34 Ala. 535; Huckabee v. Andrews, ib. 646; Short v. Battle, 52 Ala. 456. To the creation of the equitable separate estate, no particular form of words, no technical expressions are necessary. A clear,-unequivocal intention to exclude all marital rights of the husband, to secure to the wife the separate, exclusive enjoyment of the estate, manifested by the terms or legal operation of the instrument creating it, is sufficient. If the grant or conveyance is made by a stranger, the intent to exclude all right of the husband, and to vest in the wife the entire, exclusive interest, must be expressed in clear terms; it can not rest on conjecture or implication. — 1 Lead. Eq. Cases, 539. A conveyance by the husband to a trustee for the use of the wife, is necessarily for the separate, exclusive use of the wife; otherwise it would be vain and inoperative. Steel v. Steel, 1 Ired. Eq. 452. A gift or conveyance made by the husband directly to the wife, during coverture, at common law, is void, as are all contracts made between husband and wife. Courts of equity have long been accustomed to support and maintain such gifts and conveyances, when they are not fraudulent as to creditors. - Of necessity they create in the wife a separate estate, vesting in her the entire, exclusive interest, since otherwise the transaction, which was intended “to have some effect, can have none in law or equity.” — 1 Bish. Mar. Women, § 838; Shepard v. Shepard, 7 Johns, ch. 57; Whitten v. Whitten, 3 Cush. 193; Denning v. Williams, 26 Conn. 226; Powell v. Powell, 9 Hum. 477. All that is necessary to [130] the creation of an equitable separate estate is, as we have seen, a clear, unequivocal intention to vest in the wife the entire, exclusive interest. A conveyance by the husband directly to the wife, without reservation, is necessarily a clear, unequivocal manifestation and declaration of the intention to relinquish his own rights, and to clothe the wife with them, and that intention a court of equity will carry into effect.—McWilliams v. Ramsey, 23 Ala. 813; Andrews v. Andrews, 28 Ala. 432; Spencer v. Godwin, 30 Ala. 355. The estate of the wife is, therefore, her separate estate independent of legislation. If the statutes creating separate estates had not been enacted, the effect and operation of the husband’s conveyance would have vested in her the entire, exclusive interest. The question arises, have these statutes changed or abrogated this well established principle? In Short v. Battle, supra, we said, “ the only purpose of the statutes was to take away the common law rights of the husband, and to define and regulate the manner in which the property of the wife should be held, to which these rights would have attached. Property of the wife to which these rights could not attach, which was, by the instrument conferring title, freed from them, and from all liability to the husband’s debts, and from his power of disposition, was not within the purview of the statutes. Such property was not subject to the mischief the legislature proposed to remedy. It was secured to the wife without the aid of the statutes. The statutes are enabling, not in restraint, of existing rights. They propose to confer on married women rights they had not at common law, nor could they obtain in equity, unless a trust was created, of which equity had jurisdiction. To construe them as abrogating or changing the existing laws, divesting the wife of rights recognized and enforced, would not comport with their letter or spirit.” The statute of Mississippi provided that “ any married woman may become seized or possessed of property, real or personal, by direct bequest, devise, gift, purchase or distribution, in her own name and as of her own property, provided the same does not come from her husband after coverture.” It was contended this proviso abrogated the principle that a gift or conveyance by the husband created in the wife a separate estate, and avoided it. But it was declared by the court the statute was enabling, conferring rights not previously existing, working no change in the law regarding equitable separate estates, and not affecting gifts or conveyances by the husband to the wife.—Ratcliffs v. [131] Dougherty, 24 Miss. 181; Warren v. Brown, 25 ib. 66. "We can perceive no reason for distinguishing a separate estate created by the gift or conveyance of the husband to the wife, from the separate estate created by the gift or conveyance of the husband to a trustee for the use of the wife, or from any other estate made separate, without the aid of legislation. Conforming to our previous decisions, we hold the conveyanee of the husband created in the wife an equitable separate estate, she was capable of aliening or encumbering as if she was sole. The mortgage in which her husband joined, to secure the payment of the debt they jointly contracted, is a valid security, and should have been foreclosed.—3 Johns. Ch. 127. The chancellor erred in sustaining the demurrer to, and dismissing the appellant’s original bill, and his decree must be reversed, and the cause remanded.