Conner v. Williams

STONE, J. The habendum clause of the deed under which Mrs. Louisa Williams held the lot which is in controversy in the present suit, is in the following language: •“To have and to hold said premises hereby conveyed to herself, the said Louisa Williams, and her heirs, forever, for their own proper use and benefit.” In Mitchell v. Gates, 23 Ala. 446, this court said: “ The force of this word, own, has often been considered in this .•connection, and sound criticism has pronounced that it can not be held to be equivalent to sole or separate. It does not point at the marital right as these do. To say we take prop- •• erty to our own use, seems mainly intended to negative the idea we are taking it for another, with some trust or agency. -‘To have and to hold the same to his own proper use and behoof,’ are words to be found in almost every deed a man •takes to .himself for land in fee-simple, or absolute bill of ■ sale for chattels. . . ‘To his use,’ ‘to his own use,’ ‘to 'his own proper use and behoof,’ what are they” but words ■used “more for sound and emphasis than to express any special quality of ownership out of the ordinary way?” .. . “ These of themselves will not create a separate estate , in a married woman.” In Johnson v. Johnson, 32 Ala. 643, the above authority • and others of similar import are cited approvingly. “ To her own use and benefit,” “ for their own respective use and benefit,” “ to her own proper use and benefit,” and “ for the use, benefit and behoof ofj” áre severally pronounced insufficient to create a separate estate. So, in Caldwell v. Pickens, [134] 39 Ala. 520, it is said the words “ own use ” and “ proper' use ” do not exclude the marital rights. We hold that the lot in controversy in the present case was the statutory separate estate of Mrs. Williams, and that the rights' of these parties must be tested from that stand- - point. Under the principle above announced, if the mortgage brought to view in the present record be, in effect, only the-mortgage of Mrs. Williams, made to secure a debt for borrowed money, such mortgage was unauthorized, and does not bind her property. In the case of Northington v. Faber, 52 Ala. 47, we said: “ That the wife can not make a valid mortgage of her statutory separate estate to secure the payment of her husband’s debts, is now the settled law of this State; and it is also settled that every such mortgage is forbidden by law, and void.” Bibb v. Pope, 43 Ala. 90, and. Wilkinson v. Cheatham, 45 Ala. 337, asserting the same principle, were cited and approved. In Smith v. Coleman, at the present term, we affirmed the same doctrine. The contract for the loan in the present case was negotiated by Levi Williams, husband of complainant; and the question arises, is the mortgage to be treated as made by Mrs. Louisa Wil- • liams? or, had the title become vested in her son, John A. Williams, so as to constitute him the borrower of the money and the maker of the mortgage ? This resolves itself into a second inquiry: Was the transfer of title to John A. Williams a real sale or conveyance, or so presented to Williams & Son, the brokers, as to appear to be a real transaction ? or, was it a device, in which the brokers participated, by which the contracting parties sought to evade or circumvent Mrs. Williams’ incapacity to give a valid mortgage security ? The testimony on this disputed question was conflicting. The circuit judge, sitting as chancellor, decreed in favor of complainant, and. thereby necessarily affirmed that the second of the above alternate propositions was established to his ■ satisfaction. There is not enough in this record to convince us that he erred in so ruling. It being thus shown that the deed to John A. Williams,.. and mortgage by him, were resorted to as a means of borrowing money on mortgage of lands that were the statutory separate estate of Mrs. Williams, and that Williams & Son, the brokers, knew the purpose for which it was done, or that • they procured it to be done for the purpose, we must treat ■ this transaction as if the mortgage were made directly t>y Mrs. Williams. That which can not be done directly,,.. [135] can not be done indirectly. — See 1 Brick. Dig. 533, § 73. Interpreting tbe finding of tbe court as we feel bound to do, this case is brought directly within the principle declared in Worthington v. Faber, supra. The decree of the Circuit Court is affirmed.